A name can carry the weight of a brand's entire reputation in the pet insurance industry, where trust and transparency are essential. This was illustrated recently in the case of TVIS Limited v Howserv Services Limited - a legal tussle that went from the UKIPO to the High Court, and ultimately, to the Court of Appeal.
But this wasn't just a legal case. It was a branding battle and a powerful lesson in how consumer confusion can change the course of trademark disputes.
The Background: Similar Names, Big Problem
TVIS Limited ("TVIS"), the owner of the VETSURE brand, has long been a player in the pet insurance industry. So, when Howserv Services Limited ("Howserv") launched a competing brand under the name PETSURE, TVIS took notice - though not immediately. Unfortunately for TVIS, they missed the window to oppose Howserv's UK trade mark application.
Subsequently, they filed invalidity proceedings at the UKIPO, based on there being a likelihood of confusion between the respective marks, that Howserv was taking unfair advantage of TVIS's reputation, and that they had earlier use of VETSURE in the UK and, as such, asserted passing off rights. The invalidity proceedings were subsequently transferred from the UKIPO to the High Court proceedings to combine the matters.
Round One: High Court – One Nil to Howserv
In the High Court, things didn't go TVIS's way.
The judge acknowledged that VETSURE and PETSURE looked and sounded alike: same number of letters, only the first letter differed, and the "-SURE" suffix was identical. But the court found the marks conceptually distinct as "VET" refers to a veterinarian, while "PET" is more general. The suffix "-SURE" was deemed descriptive of insurance services, narrowing the protection TVIS could claim.
Even though TVIS presented evidence of actual confusion - misfiled claims, mistaken calls, and emails - it wasn't enough to sway the decision. The court concluded that consumers had simply made administrative errors from inattention, not genuine brand confusion. TVIS's claims of infringement, passing off, and invalidity were all dismissed. For the moment, it was one nil to Howserv.
Round Two: Court of Appeal – The Tide Turns
TVIS filed an appeal. And this time, the Court of Appeal took a different view, one that leaned more heavily on real-world evidence. The court ruled that there was a likelihood of confusion between the respective marks. It was found that the High Court had placed too much emphasis on conceptual differences and not enough on strong visual and phonetic similarity. This time, the actual confusion evidence carried weight. The court heard customer phone calls, read emails, and reviewed social media posts. One exchange stood out: a caller to TVIS said, "Ok. Can I just check that you are definitely Vetsure, not Petsure?" The reply: "Nope, we are definitely Vetsure. There is a company called Petsure, but that's not us (laughs)." The customer replied, "I know, I'm getting so confused because I got an email from Petsure and I thought Oh, oh gosh, OK, so I'll look for Vetsure. OK brilliant"..."
Customers weren't sure who was who, and they were actively seeking clarity. It showed that Vetsure and Petsure were regarded as brand names and not descriptors and the confusion was because of the similarity between the two names. It also showed that the supposed conceptual difference between the Sign and the Trade Mark did not suffice to make it clear to the customer that the two were not the same.
Although some examples showed that some consumers realised their mistake quite quickly it still showed they were initially confused. TVIS's passing off claim was also successful as again the evidence showed a misrepresentation. Howserv's PETSURE mark was also declared to be invalid (cancelled from the UK Trade Marks Register) due to a likelihood of confusion between the respective marks.
The Key Takeaway: Evidence is Everything
This case underscores the importance of gathering and presenting concrete, compelling evidence in trade mark disputes. It's not just about legal theory; it's about how real people interact with brands in everyday life.
While many pet insurance brands might use common words like "PET," few had built a recognisable identity with a suffix like "-SURE." TVIS showed that even small companies can clash over brand space - and win - if they can demonstrate how their audience is affected.
What's Next?
Howserv has now filed an appeal to the Supreme Court. Let's see where round three, taking place in the highest court of the land, will take this brand confusion case.
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