October 2005
Burberry attempts to ferret out "chav" animal infringements
Apparently there was a gap in the market for ferret clothing which Simon Bishop of Midlands company "Ferret World" was enterprising enough to fill with a range of clothing. Fashionista ferrets can choose from various outfits including football kits, santa outfits, combat gear and also the "chav" ferret outfit consisting of a distinctive checked pattern cap and jacket. It would appear that this outfit was also originally advertised using the term "Burberry".
Mr Bishop is now surprised to have received a letter before action from lawyers acting for Burberry claiming trade mark infringement. Both the name Burberry and the check pattern are UK registered trade marks. As such any use of confusingly similar words or logos may constitute an infringement. Arguably Burberry may also have a claim for passing off in that Ferret World are allegedly using Burberry's design in a way that may confuse the consumer into believing the goods are in some way related to Burberry thereby taking advantage of their goodwill and reputation.
Mr Bishop claims that his check fabric is different to that of Burberry being purple and white in place of the iconic red and beige design and also feels that Burberry are spending a lot of time targeting a small business.
BRIFFA Comment:
There is a fine line between going to necessary lengths to protect your intellectual property rights and being over zealous, a line that Mr Bishop believes Burberry have crossed. If the outfits can be found to be an infringement then Burberry have the right to prevent them no matter the size of their opponent as damage for a famous brand can be far in excess of the profit made by a small business (arguably "chav" outfits for ferrets are not likely to help Burberry's image). Equally however any energy and cost put into a litigation must be worth the potential return that you can get from it.
Mr Bishop has apparently attempted to absolve himself of responsibility for infringement by claiming to have bought the fabric in question from " a guy called Abdul in Birmingham". Unfortunately for Mr Bishop ignorance as to infringement (whether it be copyright, design right or trade mark infringement) is not a defence to any threatened action, it would merely serve to enable the defendant to request a reduction in damages awarded. Once you have been put on notice of an infringement however you would be under a duty to cease use or face potential legal consequences.