UNITED KINGDOM: Wriggle v. Wiggle Centers on Likelihood of Confusion Under EU Law

The recent opposition by Wiggle Limited to the registration of the WRIGGLE mark by Wriggle Foods Limited highlights the ongoing influence of EU case law in UK trademark disputes post-Brexit. This case illustrates how UK tribunals continue to apply pre-Brexit EU case law when assessing trademark applications under assimilated law.

Wriggle Foods Limited applied to register the WRIGGLE mark on April 18, 2023, for various goods and services, including bags, clothing, and retail services. The application was published for opposition on May 26, 2023. Wiggle Limited opposed the application under Section 5(2)(b) of the Trade Marks Act 1994, citing potential confusion due to the similarity between the marks and the goods/services offered.

The decision relied on pre-Brexit EU case law due to the assimilated law provisions in the European Union (Withdrawal) Act 2018. Relevant EU cases like Sabel v. Puma and Canon v. Metro-Goldwyn-Mayer guide the assessment of likelihood of confusion. Higher UK courts have the discretion to depart from pre-Brexit Court of Justice of the European Union case law if they deem it appropriate, although this has not been exercised in this case. The Retained EU Law (Revocation and Reform) Act 2023 maintains the requirement for tribunals to follow assimilated EU case law, ensuring continuity in legal principles.

Neither party submitted evidence or written submissions, leading to a decision based solely on the papers. The decision hinges on whether the similarity between the marks and goods/services could cause confusion among consumers. The global assessment approach, as per EU case law, considers factors like the average consumer’s perception and the overall impression of the marks.

The decision to rely on pre-Brexit EU case law ensures consistency and legal certainty, even as the United Kingdom diverges from EU law in other areas. Professionals should remain aware of these principles when advising on trademark applications and oppositions in the UK.

The ongoing reliance on EU case law emphasizes the importance of understanding global assessment principles and the role of the average consumer in likelihood of confusion assessments. The absence of written submissions in this case highlights the need for thorough preparation in trademark oppositions. The flexibility for UK courts to depart from EU case law in the future may introduce new considerations for strategic planning in trademark disputes.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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