Arnold J's Judgment, which concluded that Enterprise's trade marks had been infringed and that there was also passing off, summarises the principles for the assessment of likelihood of confusion and the average consumer test. The Judgment also contains a helpful analysis of survey evidence prescribed in the Interflora case - ultimately, their real evidential value must be weighed against the often very substantial costs of the same.
The judge's ruling that in the assessment of the likelihood of confusion in the UK, the relevant public could include residents of a foreign country, is noteworthy. Similarly, in passing off, it appears that a claimant can rely on the deception of customers who are resident abroad.
The court's finding of a likelihood of confusion may seem surprising given the low similarity of the two marks. However, the decision illustrates the importance of the context in which the mark is used. Further, evidence of actual confusion, while according to the judge immaterial to the overall outcome in the present case, did no harm to Enterprise's claim, and can generally be an additional way of bolstering a claimant's case.
Left to right: Enterprise, Europcar
To what extent can context change the likelihood of confusion? Does a survey ever help? How do you consider the position where a proportion of the customer base comes from overseas? These questions, among others, find a response in the judgment of Arnold J in Enterprise Holdings Inc v Europcar Group UK and Another  EWHC 17 (Ch). Background Enterprise and Europcar are two heavyweights of the car rental market. By 2012 Enterprise had 30.1% of the UK market, Europcar 26%. Enterprise had, since its entry into Europe in 1994, used a logo consisting of a stylised letter “e” both as part of the word ENTERPRISE and also solus. For its part Europcar typically used a logo which comprised the word EUROPCAR above a “horizon” element. In 2012 Europcar moved to adopt a new logo which included a stylised “e”.