Trademark case — saved by an S: Asos vs Assos

In a wide-ranging trademark infringement and validity case between two clothing manufacturers with almost identical marks, ASSOS and ASOS, the High Court reviewed the approach to be taken to many issues that arise frequently when considering trademark conflicts.

These included when earlier use will count as an ‘earlier trademark’, what evidence can support an allegation of confusing similarity, dilution and the own-name defence. On almost all issues, it found in favour of the defendant, Asos. The case provides a useful illustration of how infringement cannot be readily assumed, even where there are two very similar marks.

The claimants are a Swiss-based manufacturer of high-end cycling clothing. They have been in business since the late 1970s and owned EU trademark registrations for a number of ‘ASSOS’ marks, both as word marks and as logos. The defendants are an online clothing retailer first established in 1999 to sell clothes and homewares similar to those of celebrities. The brand is an acronym for ‘as seen on screen’. At first it sold other parties’ goods but gradually started selling clothes bearing its own brand. Assos sued Asos for trademark infringement, which counterclaimed for invalidity of the Assos marks…

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