Surprisingly, this is not about the spectacular mess that Twitter is facing, and this happened in Singapore.
In September 2018, V V Technology, a Singaporean start-up that serves as a user’s smart personal concierge, applied to register its application mark of a yellow hummingbird.
Consequently, Twitter filed a notice of opposition to this the following year, in September 2019, and a principal assistant registrar ruled in favour of Twitter.
V V Technology, ensuing this legal tug-of-war and game of spot the difference, appealed this decision to the High Court.
Twitter’s Application Mark vs V V Technology’s Application Mark
Twitter’s iconic logo is that of a bird (usually blue) in flight.
V V Technology’s logo was to be a yellow bird in flight.
It said it chose the logo “given that symbolic parallels could be drawn between a hummingbird, which is nimble given its small size but also capable of travelling great distances, and the (company), which is committed to being responsive to market demand and to the wide-ranging needs of the communities it serves”.
Both birds are two-dimensional and are a side profile.
A Bleak Game of Ping Pong
Going back and forth with the judge in court, V V Technology’s arguments as to how its logo is different from Twitter’s all fell through.
V V Technology argued that its logo and Twitter’s logo portrayed different types of birds, with Twitter’s being a mountain bluebird and V V Technology’s being a hummingbird.
Furthermore, V V Technology argued that its logo is distinctive because of the angular depiction of the hummingbird, emphasising its long, pointed beak and its thin, V-shaped body and sharply pointed wings.
V V Technology also contended that the competing logos were of different orientations and that this would be clear if a line was drawn across the bird’s body.
The judge rejected this, stating that it is unclear what counts as a line drawn “across” the bird’s body and that, depending on how the line is drawn, the orientation can change.
V V Technology also argued that although both birds are depicted to be in flight, the movements implied by the position of their bodies, wings and position of their heads are different.
Again, the judge rejected this, saying there is no singular definite way to draw the body line.
V V Technology also put forth that their bird had three wings, while Twitter’s bird had a single wing with three distinct feathers. Again, (say it with me) the judge rejected this argument.
This exhausting game of spot the difference probably played out this drearily in court.
The Decision
In March this year, Twitter kind of “won” the case, but V V Technology appealed, which leads to the case being heard in the High Court.
On 23 November, the High Court came to a decision, finding that a significant proportion of consumers are likely to be confused between these logos as they are visually and conceptually similar.
This posed a real risk of this misrepresentation, diverting sales and customers away from Twitter.
Agreeing with Twitter, Judicial Commissioner Goh said that the general shape of both logos is of a “two-dimensional, side profile of a small bird with curvilinear features, swept back wings opening out and up behind the bird’s head, a pointed tail curved outward, as well as a pointed beak”.
He added that, when assessing the similarities between the logos, it should not be focused on “pedantic stylistic dissimilarities based on a side-by-side comparison of the marks” because, in real life, “consumers simply do not analyse and remember the various minute details of the marks. As such, while it is true that the differences listed by the applicant may be evident from a detailed side-by-side comparison, these differences are, when viewed holistically, ultimately trivial.”
Essentially, the competing marks carried visual and conceptual similarities to a fair degree which created a likelihood of confusion.
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Singapore on Trademark Opposition and “Likelihood of Confusion”
According to Singapore law, there are two conditions for a successful trademark opposition: similarity of goods or services and the likelihood of confusion by the relevant public.
In this case, the condition of the likelihood of confusion carried the greatest weight.
“Likelihood of confusion” refers to consumers believing there is a relationship or connection between the two services.
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Featured Image: Twitter / V V Technology
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