For those of us who did not have the stamina to stay up to the wee small hours of this morning, tonight marks the long awaited return of HBO's epic fantasy Game of Thrones. The series placed Northern Ireland firmly on the world stage in terms of film making and will leave behind quite a remarkable legacy.
The show has produced some memorable lines and phrases, many of which have been reproduced or parodied in popular culture and social media, including President Trump’s famous “Sanctions are Coming” tweet, promoting sanctions against Iran. HBO responded to that tweet by issuing a statement to the effect that they would prefer their trademark not to be misappropriated for political purposes.
My favourite quote from the series is one of many quips by Tyrion Lannister, played to perfection by actor Peter Dinklage.
“That’s what I do. I drink, and I know things”.
Perhaps fans will choose to toast the return of the series with a pint of “Game of Stones”, a craft beer produced by Wadworth & Co Limited. Last year Wadworth applied to register as a trademark an image depicting standing stones with the phrase “Game of Stones” appearing underneath, which they intended to use in the marketing of their new beverage. HBO filed an objection to the application on the following bases:
1. That the mark was too similar to their ‘Game of Thrones’ mark and was likely to confuse purchasers;
2. That registration of the mark would be detrimental to the repute of the ‘Game of Thrones’ mark; and
3. That Wadworth would essentially be “passing off” their product as having some link with their own goods and services.
The UK Intellectual Property Office (UKIPO) heard the case and ultimately dismissed each of the grounds of objection, allowing the registration to proceed.
Whilst it was recognised that the marks shared some visual similarity, there were notable visual differences. It was also accepted that there was a high level of aural similarity, however, none of this was, in the view of the UKIPO, sufficient to create a real likelihood of confusion in the mind of the purchaser. Whilst HBO’s trademark may well be brought to mind by the new mark, this was not enough to unseat the application.
The ‘Game of Thrones’ mark is registered for a wide range of goods and services, including beer; however, the mark has not to date been applied to an alcoholic beverage in the UK. It was therefore held that the mark did not have the requisite reputation in this area to prevent registration of the new mark on the basis of detriment to the repute of the ‘Game of Thrones’ mark.
Finally, HBO was unable to demonstrate that the necessary elements of the tort of “passing off” were present and the objection on this ground also failed.
Companies like HBO will continue to take steps to fiercely guard their intellectual property rights. Our intellectual property specialists can advise you on how best to defend your company’s own IP and can also act as a sounding board if you plan to market a product or service under a name which may attract interest from the guardians of a protected mark. If a dispute arises, our litigation team is well placed to assist.
In the meantime, I await with interest the answers to two crucial questions, namely:
Who will prevail and claim the Iron Throne? and
Will any of the characters survive?!