Parties


In the High Court, June 2006.

Background

Ellerman Investments owned the Ritz Hotel in London and had some trade mark registrations in RITZ. The second claimant ran the casino at the hotel. The first claimant also ran an internet casino under <ritzclublondon.com> and <ritzclublondon.co.uk>.

The defendants (a husband and wife) had registered <ritzpoker.net> and the .org, .net, .biz and .info variants. They also had <ritzypoker.co.uk> and .net. These were pointed to a gambling links website. There was nothing in the judgement to suggest a link with the Dr C Vanci in the Metalrax case.

With ritzpoker.net, the judge noted: "it [was] point[ing] to a website entitled RoyalPlaza.Net. That website related to gambling with specific reference to Blackjack, Poker, Craps and Baccarat. It contained information about gaming and it contained links to third party sites including sites named Pacific Poker, Party Poker and Poker Room. There was a dispute whether it contained links to gaming sites. The defendants' case was that they were simply concerned with supplying comprehensive and impartial information about poker and that they were not directly concerned with or linked to gaming sites. Mr. C-Vanci gave evidence that the defendants were divorced from any gambling activity whatever. They did not allow any third party related advertising. They did not offer any downloads of gambling games other than for academic, fun or educational use. It is abundantly clear, however, on the evidence that Pacific Poker, Party Poker and Poker Room were portals with links to gaming sites. By "links", I mean that one can click on the visual representation of that site and then be automatically directed to that site on which one can then game. Indeed, Mr. C-Vanci said in evidence that the fact that some links might go to competitors of the claimants was obvious."

Summary judgement was sought and obtained. Summary judgement can be obtained where there is no realistic defense. After considering the Reed case, the judge in the High Court rejected the argument that the word 'poker' was wholly or specially descriptive so that it added nothing at all to the word RITZ - it was something that the public would notice.

However, the judge accepted that the RITZ mark had a highly distinctive character and there was no real prospect that a full court would think that the gaming services offered via the domain name were different from the online casino that the Ritz ran. In doing this, he felt that the tests to apply were:

• the likelihood of confusion must be appreciated globally, taking account of all relevant factors;
• the matter must be judged through the eyes of the average consumer of the services in issue who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind;
• the similarities of the marks must be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components;
• the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character, either per se or because of use, enjoy a broader protection [sc. confusion will be more readily inferred];
• the factors to be taken into account on a global assessment are interdependent. Accordingly, a lesser degree of similarity between a mark and a sign may be offset by a greater similarity between the services and vice versa;
• if the association between the mark and the sign causes the public to believe wrongly that the respective [services] come from the same or economically linked undertakings, there is a likelihood of confusion.