Lumos Skincare v Sweet Squared, Court of Appeal
This was a case of beauty products. But the result will not appear pretty to the defendant. Lumos Skincare sold four anti-ageing skincare products under the name “Lumos”. The defendant used “Lumos” when selling nailcare products. Both sold their products to beauty salons, amongst other places. The claimant sought to show passing off on the basis of established goodwill, a misrepresentation by the defendant as to a possible trade connection, and damage. Case law showed that a significant number of people had to be misled. The Patents County Court decided that one email from a trade customer referring the claimant to their new nail product range was not enough, especially as the sender was not brought as a witness. The Court had also decided that the skin and nail products were different markets.
The Court of Appeal allowed the appeal and said that the Patents County Court had misdirected itself. Both sold to salons and advertised to similar places. In addition, the fact that the claimant was a relatively small business with sales of just a few thousand pounds at that stage meant that one email would be enough as it showed a significant number of people were affected in absolute terms. One of the Court of Appeal judges dissented on the basis that the matter should not have been re-tried by the Court of Appeal. The appeal decision is therefore controversial.