There is a narrow line between catching a consumer’s attention and confusing a consumer – a line carefully exploited by look-a-like confectionery in supermarkets. Now the line may be growing fuzzier. This could make use of key words and on-line advertising more of a minefield.

The court held that if the consumer was initially confused about who produced a product - for example when it first caught their attention - there could be a trade mark infringement. That applied even if, when they bought the product, they knew exactly where they stood. This strengthens the position of trade mark owners objecting to use of their trade marks in key-word advertising or meta-tags. It makes it tougher for those who want to take advantage of such use.

Och-Ziff Management Europe Ltd & anor v Och Capital LLP & anor (2010)