Lumos Skincare Ltd.v Sweet Squared Ltd & Ors [2013] EWCA Civ 590
The Court of Appeal reassessed the findings of fact by the judge in a passing off action on the ground that the judge had misdirected himself in law. In particular, the Court of Appeal held that the requirement in a passing off action that the claimant must show that a substantial number of people have been misled is to be applied only to the claimant’s actual or potential customers, however few. The judge had also wrongly treated trade customers and end users differently when considering whether there had been confusion.
The Claimant sold skincare products under the name LUMOS and alleged passing off by the Defendants’ sale of nail care products under the same name. Both parties sold their products to beauty salons whose technicians used the products on their customers. The judge held that there was no likelihood of confusion and therefore no passing off.
The majority of the Court of Appeal found that on the evidence there was a likelihood of deception amongst end users and there had also been actual confusion experienced by one of the Claimant’s trade customers. The Claimant had established passing off.
Richard Hacon and Christopher Hall appeared for the Claimant.