In February 2011, the High Court ruled that two European Community Trade Marks for the “32RED” word and a figurative trade mark comprising “32” and “red” had been infringed by “32Vegas” marks in relation to online casinos. The High Court’s ruling was on the basis that the average online gambler would find the marks confusing and would assume they were connected in some way. The High Court also ruled that a UK trade mark registered for the number 32 was sufficiently distinctive to be a valid registration, although it had not been infringed.
The Court of Appeal has rejected an appeal against the decision of the High Court, on the grounds that the High Court’s findings were not based on any error of principle or perversity in factual findings, leaving no scope for a fresh evaluation by the Court of Appeal.
However, the Court of Appeal allowed a cross-appeal against the finding that the UK trade mark for the number 32 had not been infringed. The Court of Appeal ruled that the High Court had incorrectly assumed that, where a separate reputation had not been established by use of the trade mark, there could be no infringement under section 10(2) of the Trade Marks Act 1994; rather, the number 32 was a significant part of the trade marks that the High Court had ruled had been infringed, such that there was no basis for saying that the trade mark for the number 32 had not been infringed as well.