• When considering whether a registered mark is
used “as a mark” or merely as a decorative feature,
evidence that consumers have become accustomed
to seeing trade marks in the same position on
products of that kind will support a finding of use
as a mark.
• Even if the registered trade mark consists of three
stripes, and is well-known among consumers, four
stripes can be held to be deceptively similar if they
are placed in a similar configuration.
• It is the similarity in the overall configuration of
the stripes rather than the number that is crucial in
the test of deceptive similarity.
• In essence, the test of deceptive similarity requires
a comparison of the marks themselves, but “relevant
context” can also be taken into account, in
particular what the marks are applied to, and the
circumstances in which the marks will be observed
• Survey evidence that is not “ecologically valid”
and evidence tending to show only a general
intention to “sail close to the wind” is of little
assistance to the court.