You may be surprised to hear that “argos.com” isn’t owned by the well-known retailer, but by an American company called Argos Services Incorporated (which I will call “ASI” to avoid confusion).
The Argos that we know and love (Argos Limited) recently brought a case in the High Court against ASI alleging infringement by them of Argos’ trademark and passing off by their use of argos.com.
As we all know, Argos is a retailer in the UK of consumer based products. ASI is a software company trading in North and South America and has used the trading name “ARGOS” since 1991. In 1992 ASI registered the “argos.com” domain name to be used as a commercial website.
Unsurprisingly, argos.com receives a lot of traffic for visitors looking for Argos and by 2004 argos.com was receiving a lot of traffic from users in the UK and Ireland looking for the retailer. Between 2008 and 2015 ASI created a version of the site specifically for UK visitors. This site took advantage of Google’s AdSense service and displayed adverts, some of which were for Argos and their competitors. Some of the payments made by Argos for these ads were therefore sent to ASI which, unsurprisingly, upset Argos.
Argos claimed that ASI’s use of argos.com and the associated AdSense programme were an infringement of Argos’ trademark under EU Regulations and amounted to passing off.
Unfortunately for Argos, the court rejected all its claims. It held that the use of the sign “ARGOS” didn’t impair the distinctive character or repute of Argos’ trademarks, and neither did it take any unfair advantage of them. In addition, Argos had willingly chosen to make use of the AdSense service from which ASI only derived a small income.
The court also held that ASI did not deliberately set out to take advantage of Argos’ marks and neither did it induce UK consumers to visit its site, they simply made some money from the circumstances that arose.
In relation to the claim by Argos about passing off, the court did not find any material misrepresentation by ASI which could have been considered to have led the public to believe that the goods or services offered by ASI were those of Argos. The court also took the view that argos.com was not an instrument of fraud as visits to the site by UK consumers were the result of error and not deception. As such, the claim for passing off failed.
By Daniel Gardener
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