The scope of protection of a trade mark registration is a key question faced by trade mark practitioners when advising on rebrands. Richard Ferguson has written an article for the Kluwer Trademark blog (which can be found here) about the recent Oatly case. This case raises some interesting questions in the context of a likelihood of confusion and unfair advantage.

In most cases involving directly competitive product (identical goods), if a competitor creates a link in the mind of the public with the well-known brand, this is likely to be considered “riding on the coat-tails” or “freeriding”, at least if there is any image transfer. However, in this case, the Court in the UK found that there was no infringement. There would be no confusion on the marketplace, and whilst Oatly had a reputation, no unfair advantage had been taken.

Overall, Oatly’s action was not without merit. The case provides useful discussion around businesses learning from their competitors, including adopting similarities in presentation. For now, the scrutiny of legal argument and PR issues around lookalike cases shows no signs of abating.