Intellectual property law is designed to confer exclusive protections to intangible assets, to be used in compliance with honest commercial practices. In the absence of a statutory definition of what constitutes bad faith, a body of case law has been necessary to illuminate the threshold of behavioural demerit sufficient to disqualify owners from the benefits of their legal protections.

As one might expect, actions taken by businesses are presumed to be “in good faith” unless a convincing challenge is levelled against them, so cases have historically been few. However, some recent and ongoing disputes are yielding insights as the limits of acceptable practice – and how to successfully plead bad faith.

After exciting blow-for-blow exchanges at the UK High Court, 2023 will re-ignite the battle of the supermarket giants Lidl and Tesco as they wrestle over the right to write within yellow circles.  

Lidl assert that Tesco are seeking to unfairly exploit the concept of “good value” that their marks evoke; Tesco allege their competitor is trying to maintain an unfair monopoly over an untenable mark.

… but with two potential wrongs, can anybody be right?

Mary White explains more here for the Wolters Kluwer Trade Mark blog.