Tuesday, 15 September 2009

Distinctive IP: NOTTA LOTTOFUN

Issue 18, 15 September 2009

The Appeal Court’s recent decision that:

· the National Lotteries Board’s trade mark registration for Lotto was invalid because it was descriptive and

· the company behind Lottofun - a service that enables punters to buy Lotto tickets online, rather than queuing for them with the plebs - is not passing off its business as being associated with the National Lottery,

shows (yawn!) yet again how short-sighted it is to adopt a weak name.

Yes, you may hoodwink some dozy dude at the Trade Marks’ Office into registering your descriptive word, but there’s every chance it will be cancelled one day. And if it is, you’ll have to sue for passing off if you want to stop a competitor from using a similar name. And that’s a lottery at the best of times! Because, as the court said here, passing off protects a company from deception arising from a misrepresentation, rather than the name itself.

And there lay the problem for the National Lotteries Board - despite the fact that a couple of people signed affidavits claiming that they believed Lottofun was associated with the national lottery, the court didn’t believe them (although they didn’t come right out and say it, there’s every chance that their Lordships felt that gamblers simply can’t be trusted!). Users of Lottofun are, the court felt, quite clear on the fact that Lottofun is simply an agent that sells Lotto tickets. For one thing, the Lottofun site says so. And, for another, users of Lottofun are sophisticated (if you want to be a sophisticate, you’ll be pleased to hear that the bar isn’t set very high – according to the court you simply have to have a bank account and the ability to use a computer, you don’t need to see the absurdity in ploughing your hard-earned cash into a game offering the most outrageous odds!)

Alliance and Lotto, that’s two very clear warnings from our courts in the space of a few weeks. Hopefully, the message will start sinking in!

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