Litigation: passing off marks in the beauty industry

The case of Lumos Skincare Ltd v Sweet Squared Ltd & Ors involved a claim in passing off, brought by Lumos Skincare, against defendants who were using the same mark for nailcare goods as Lumos had been using for skincare goods. The Court of Appeal’s decision deals specifically with the issue of whether or not there is a divide between these segments of the beauty industry, sufficient to avoid giving rise to a likelihood of confusion for the purposes of an action in passing off. In particular, the Court of Appeal found that the skincare and nailcare sectors are not entirely distinct and there will be overlap, for example in the outlets from which skincare and nailcare products are purchased.

Lumos sells skincare products under the mark ‘LUMOS’. The defendants sell nailcare products also under the mark ‘LUMOS’. The defendants’ products are much cheaper than those of Lumos and are aimed at the ‘mass market’, whereas Lumos’s products are high end and expensive.

Both Lumos and the defendants have trade/professional customers (with the products of both Lumos and the defendants being used in beauty salons for treatments) and end consumer/retail customers who purchase their products from salons, for use at home. While Lumos also sells some products via limited, high-end retail outlets and via the internet, the defendants’ sales are made purely to or through salons.

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