Jack Wills emerged victorious against House of Fraser in a recent High Court judgment, revolving around the bird logos used on their respective brands of casual clothing: Jack Wills claimed that House of Fraser’s logo, the silhouetted profile of a pigeon fashioning a top hat and bow tie, infringed its “Mr. Wills” trade mark, comprising a pheasant’s silhouette, adorned with a top hat and clutching a cane.

The High Court ruled that House of Fraser’s use of this pigeon logo, embroidered on the department store’s own clothing range, took unfair advantage of Jack Wills’ trade mark and, in doing so, made their own brand of casual clothing more attractive. On account of the clear similarity between the logos, Mr Justice Arnold held that there would be a likelihood of confusion by the average consumer.

The case is particularly interesting with regard to what can constitute unfair advantage. In establishing whether there has been unfair advantage, previous case law has tended to focus on the intentions of the defendant. Mr Justice Arnold held that unfair advantage could still have been gained by the defendant, even if it could not be proved that there was a deliberate intent to exploit the goodwill and reputation of the mark in question.

The case also reaffirms the identity of the average consumer, particularly when taking into account acquired distinctiveness of the mark. Despite the goods in question being identical, House of Fraser stressed that their clothing range targeted a different demographic to Jack Wills. In this regard, Mr Justice Arnold asked the question of who the average consumer would be when the parties are selling identical goods but each targeting different markets. Moreover, when assessing the likelihood of confusion, the trial judge raised the question of how this should be approached if the mark has acquired distinctive character through use, but only amongst a significant proportion of the relevant consumer group and not its entirety.

Mr Justice Arnold held that the relevant average consumer in this case will be a consumer of clothing. Nevertheless, within this wider consumer market, the trial judge ruled that it would rarely be appropriate to only consider the likelihood of confusion amongst the demographic for whom the mark has acquired distinctiveness. Indeed, although Jack Wills may have been targeting a specific demographic, it is likely that the items of clothing will not only be bought by these individuals but also, for example, by parents or relatives as gifts. In this regard, when assessing the likelihood of confusion, the average consumer must still be viewed as this whole (in this case, a consumer of clothing), despite the fact that some consumers may know and recognise the brand in question while others will be unaware of it.

Mr Justice Arnold referenced various other brands in the UK that use bird logos on their clothing: Emporio Armani, Hollister and American Eagle, to name but a few. Nevertheless, despite the popularity of birds as brand emblems on clothing, the judge remarked that the Mr Wills’ logo differed from all of the aforesaid: the pheasant is depicted side-on, grounded and, most importantly, adorned with human accessories. By sporting a top hat and bow tie, House of Fraser’s logo went a step too far and was deemed to be closer to Jack Wills’ logo than to any of the other brands. As a result of this judgment, Jack Wills has not only reinforced the strength of its pheasant mark, but has also established a firm precedent against other third parties who may seek to use birds fashioned with human accessories on similar items of clothing to those marketed under the Mr Wills brand.