A Judge has ruled that a popular Scottish football magazine did not infringe the “Tartan Army” trade mark.
The Tartan Army Limited (TAL), who are the registered owners of the UK and EU ‘Tartan Army’ trade mark claimed that Alba Football Fans Limited (Alba) had infringed its rights by publishing ‘The Famous Tartan Army Magazine’.
TAL requested an order prohibiting Alba from infringing its rights together with the destruction of all promotional and printed material bearing the ‘Tartan Army’ mark.
A Judge ruled that football supporters and consumers alike are unlikely to “associate” Alba’s magazine with the merchandise sold by TAL and said:
“I do not accept that there is any misrepresentation on the part of the defender in publishing the magazine under the title The Famous Tartan Army Magazine or in promoting travel services for football supporters under that name.”
Importantly, the Judge stated that using the word “famous” was significant as it ultimately meant the marks were not identical:
“To that extent the addition of the word “Famous” before Tartan Army is not unimportant. It is not an insignificant detail which the average purchaser or customer would not notice. In my judgment the defender’s Magazine title cannot be said to be identical with the pursuer’s Trade Mark.”