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In this Logos & No-gos eBulletin, we examine the recent decision of the Court of Appeal in relation to the long running trade mark infringement claim made by Specsavers against Asda.  In 2009, Asda re-launched its in-store optician services with the banners "Be a real spec saver at Asda" and "spec savings at Asda" often used in conjunction with white overlapping ovals with the words ASDA and Opticians.  The High Court held that only Asda's first strapline had infringed taking unfair advantage of Specsavers' registered word mark.

The Court of Appeal has rejected the High Court's finding in part.  It has held that Asda did take unfair advantage of Specsavers' word mark and logo marks with the word Specsavers on it by using both its two straplines and its white oval logo. 

It has referred two questions to the Court of Justice:

• whether colour associated with, but not registered for, a trade mark should be taken into account when carrying out an assessment on likelihood of confusion or unfair advantage; and
• whether use of a device mark together with a word mark ensures that the device mark cannot be revoked for non-use.