In addition there are word marks for “verus AU79” (German trade mark no. 302009039886) and “Au79” (French trade mark no. 3809851). Customers might remember a very usual colour, such as the pink above, but as I have shown above gold is not so unusual. The claimant (Au Vodka) applies for an interim injunction against the defendants (NE10 Vodka) to restrain the marketing and sale of their newly launched range of NE10 vodkas. The claim is for passing off, based on the allegedly deceptively similar get-up of the defendants’ vodka to the get-up used by the claimant.

Defendants' bottle of “NE10 vodka” is similar in shape to the bottle of “Au79 vodka”, as seen from the picture (above) showing the parties’ plain vodka bottles side by side.Article written by Alona Andrieieva, qualified Ukrainian patent and trade mark attorney, now research associate / paralegal at EIP

In my view, a customer might remember the colour, especially if it is very unusual, the bottle but it is the name that it is most important.In paragraph 58 the judge commented on the heavy emphasis by Au Vodka “ on the ‘conceptual similarity’ between the claimant’s use of the chemical symbol for gold Au and its atomic number 79 and the defendants’ use of the chemical symbol for Neon: Ne and its atomic number 10” going on to comment “ Despite having an interest in chemistry since my school days, I confess that when I first saw the defendants’ bottle and brand name, my immediate impression was that it was perhaps a postcode reference (that thought perhaps an indication of a London bias) and the notion of Neon and its atomic number did not occur to me. The more important point is that this ‘conceptual similarity’ argument has, in my view, nothing to do with what the ordinary consumer thinks when they encounter one of the defendants’ bottles (see further below) ” . Another similar vodka bottle named Grand79 has a metalized bottle in gold colour and the first picture was posted on 20 June 2016: Grand79 Vodka | Facebook. In contrast the pictures below, shown in the judge's decision, appear to me to show the originality of the colour for the "HE 10" vodka bottles, which can lead to an association with neon because of its bright, commonly used colours that are not of natural origin. However the judge stated that the Claimant’s pleading of its get-up focused on their case against the Defendants rather than the features which the consumer will carry in his or her mind, such as: Doing the best I can on the evidence, viewed in context, it seems to me that none of these people were actually deceived into thinking the defendants’ vodka was that of the claimant. At most, one might say that these instances support a case that consumers will believe the defendants’ vodka comes from the same stable as the claimant (cf indirect confusion in the law of registered trade marks), but, to my mind, what they evidence is consumers wondering whether there is a connection as opposed to actually believing that there is one. So these are not, in my judgment on the current evidence, instances of actual deception. ”

It is too early to draw any such conclusion in this case …At the same time, I decline to take into account the claimant’s accusation that the defendants intended to trade off the claimant’s reputation and goodwill”.the bottle being generally of clean appearance, that is to say without further adornment save the upper and lower ‘plates’ particularised below (noting that whilst not prominent in the case of flavoured versions of the vodka that flavour is printed together with a diagrammatic fruit indication about half-way up the bottle); In support of its claim Au Vodka identified the main distinguishing features of the bottle containing plain vodka and they are set out in judgment as follows in paragraph 54: a lower plate of secondary prominence, close to the base of the bottle and being of rectangular shape and containing three lines of text all capitalised, “5 TIMES DISTILLED”, “PREMIUM VODKA”, “40% ALC VOL | 70CL e”; In addition, the judge declined to reach any conclusions as to the Defendants intention in selecting its name and get-up and in paragraph 79 said: