The Court of Appeal has upheld the High Court's decision not to allow the "mouse-on-wheels" mark used by Esure Insurance Limited in promoting its insurance and finance business due to similarities with Direct Line Insurance plc's "telephone-on-wheels" mark used to promote the same services.

The Court of Appeal, however, criticised the High Court over its decision to interfere with the hearing officer's decision under section 5(2)(b) of the Trades Mark Act 1994, namely that there existed a likelihood of confusion by the public of the two trade marks.

The Court of Appeal examined European Court of Justice jurisprudence to come to the conclusion that a judge was entitled to make a decision regarding the likelihood of confusion based on his own observations. This was despite there being an absence of expert evidence to back up his conclusion.

This judgment therefore draws into question the value of expert evidence in relation to issues of confusion that are assessed from the viewpoint of the average customer. This judgment seems to indicate that expert evidence may only be appropriate in exceptional circumstances.

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