When choosing a name for your business, it is essential to check that there is no risk of...
When choosing a name for your business, it is essential to check that there is no risk of confusion with another trading name that might give rise to a claim for trade mark infringement or passing off. Recently, a company that sold flowers succeeded in a claim that its trade mark had been infringed by another company that sold competing goods.
Flowerbx Limited sold flowers and other products and provided delivery and floral design services. It had registered the name 'Flowerbx' as a trade mark. It had grown significantly since it was founded in 2015, with an annual turnover in 2025 of about £4.3 million. In late 2023, it had become aware of what it considered to be confusion with a company called Flowers Box London Limited, which traded under the names 'Flowers Box' and similar names, and subsequently brought a claim of trade mark infringement. Flowers Box London counterclaimed that Flowerbx's trade mark was invalid, arguing that it was descriptive of a number of the registered goods and services.
The Intellectual Property Enterprise Court observed that the evidence was that Flowerbx's mark was pronounced 'flower box', so it would be seen, heard and understood as including those two words. However, 'flower box' could not be said to have one or more established meanings of which the public would be aware, in the way that 'hat box' or 'shoe box' had. In the Court's judgment, the words 'flower box' were not descriptive of Flowerbx's goods and services. The Court was also satisfied that Flowerbx had grown and had achieved media coverage at a level easily sufficient to have enhanced the distinctive character of its mark. A significant proportion of the relevant class of persons, both the general public and businesses, had come to identify Flowerbx's goods and services as originating from it by use of the mark. Flowers Box London's invalidity counterclaim therefore failed.
Turning to Flowerbx's infringement claim, the Court noted that there was no dispute that Flowers Box London's goods and services were identical to those in the specification of Flowerbx's mark. The Court found that, even when the word 'London' was added, Flowers Box London's signs were visually similar to Flowerbx's mark. The signs were also aurally and conceptually similar. Overall, the Court concluded that there was a high level of similarity.
The Court took account of a number of instances of alleged confusion identified by Flowerbx, including complaints it had received relating to orders from Flowers Box London and Trustpilot reviews intended for it which were credited to Flowers Box London. In the Court's judgment, the only likely explanation for the confusion lay in the high degree of similarity of Flowers Box London's signs to Flowerbx's mark and the close similarity of their activities.
While Flowers Box London's name might have been adopted innocently and it might not have intended to take unfair advantage of Flowerbx's reputation, it had traded with knowledge of Flowerbx and its business from at least July 2019, when it first received a Trustpilot review intended for Flowerbx. Customers had brought Flowers Box London's goods and services believing them to be those of Flowerbx, in some cases stating after the event that they had intended to use Flowerbx because of the quality of its goods and services. The Court was satisfied that Flowers Box London had taken unfair advantage of the distinctive character of Flowerbx's mark. The infringement claim was upheld.
