|The big company wanted to teach the smaller company a lesson|
|Branded Pol-Rama Sunglasses, 1970s|
Perhaps you intend to buy some new sunglasses for Christmas? If so a whole range of branded products will be competing for your attention on the shelf. Trade marks are fiercely protected and the sunglasses shown here caused the mighty Polaroid corporation to launch legal action....which they lost.
The court case, in 1977, was a major victory for the small manufacturer, in this instance Lessar Brothers of Birmingham. In 1966 Lessars had launched a range of sunglasses called 'Polarama', a conflation of the words 'Polarising' and 'Panorama'. Polaroid's agents objected and although Lessars denied that they had infringed any registered rights they changed the name to the hyphenated 'Pol-Rama' from 1968. In 1971 they moved to register this as a trade mark for sunglasses and Polaroid Corporation objected.
The case came before Mr Moorby on the 13th January 1977 and centred around the possibility for confusion of the two marks. Evidence was presented by a phonetics and linguistics expert from University College London to the effect that if 'the word Polaroid' was spoken quickly it was liable to sound like a two syllable word beginning with a sound like 'pole', but a National Opinion Poll survey from 1973 was presented to show that the public responded more significantly to the end of the word '..roid' than the beginning 'Pol...' The judge concluded that there was thus very little likelihood of confusion from the sound of the two names (besides the fact that no evidence was presented that any confusion had actually occurred). He also considered the size and visual appearance of the name as written on the inner sides of the spectacles or embossed on the vinyl spectacle cases and, again, saw no reason to refuse the application by Lessars.
Polaroid sunglasses were first made available in Great Britain in 1937, the trademark being registered several times for various categories of goods, but only for 'eyeshades, goggles, eyeglasses and sunglasses' in 1950. In the year the legal action was launched, 1971, sales of Polaroid sunglasses amounted to £3,100,000, approximately a 20% share of the market, as opposed to sales of £40,759 for Pol-Rama. Although the sales from the smaller company could be shown to have increased significantly in the last year the court decided that this was not in itself an unusual commercial occurrence. Furthermore it was demonstrated that the company had advertised in various pharmaceutical publications using the 'Pol-Rama' name long before their application to the Trade Marks Registry and so the surge in sales could not be linked directly with the use of the new name. It was the job of the registration authorities to flag up any potential conflicting names...and they hadn't come up with Polaroid!
This celebrated case was heard under the Trade Marks Act of 1938. Legal students need to be aware that this has since been superseded by newer legislation. No doubt the court costs, of £200, would be much higher these days as well!
The full judgment is recorded in Reports of Patent, Design and Trade Mark Cases (RPC) 1977 94 (25): 581-587