Pliteq Inc & Anor v Ikoustic Ltd & Anor
Decision date: 2 October 2020
Neutral citation: [2020] EWHC 2564 (IPEC)
Overall AI summary confidence: high
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: high
This case concerns Pliteq's claims that former distributor iKoustic infringed GENIECLIP and GENIEMAT trade marks and committed passing off by selling competing Mute products and using Pliteq's marks in online listings and ads. The court held that the defendants' use of the marks was generally protected by the exhaustion (re‑commercialisation) defence, except for a single webpage shown at Annex C, so the trade mark infringement claim succeeded only in respect of that page; the passing off claim failed in full. Overall there was no proven "bait and switch" or confusion affecting the trade mark functions.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: medium
The court applied the exhaustion defence (s.12/Art.15) to determine whether use of a proprietor’s mark was "in relation to" goods put on the market with consent; objectively, most of the defendants' uses related to genuine Pliteq goods and thus fell within exhaustion, save for one webpage (Annex C) where that defence did not apply. The judgment also indicates that use of dynamic Google adverts generated from an advertiser’s account can constitute use by that advertiser where the advertiser employs and can control the service (e.g. by negative matching), and that a reseller offering alternative branded goods alongside genuine marked goods will not by that fact alone infringe the trade mark functions absent deception or demonstrated damage.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The judgment contains observations that the doctrine of "initial interest confusion" is contentious and not necessarily useful in internet advertising contexts, that internet keyword advertising is not inherently objectionable, and that the reseller’s subjective motivation is generally irrelevant to the availability of the exhaustion defence; it also notes practical means advertisers have to control which pages/terms trigger ads.