The Intellectual Property Enterprise Court (IPEC) has dismissed a claim for infringement of trade marks consisting of the words “fun time”, brought by a manufacturer of toys for babies and toddlers (LUEN FAT METAL AND PLASTIC MANUFACTORY CO LTD) in relation to sales in the UK by FUNKO LIMITED a merchandising company of action figures, plastic figures and plush toys which bore the names “Funtime Freddy” and “Funtime Foxy”. These represented characters from the “Five nights at Freddy’s” (FNAF) video game, a scary game directed at teenagers and adults. A third party had licensed the defendant to make the FNAF merchandise.
The Claimant is the proprietor of UK registered trade mark No 2132000, registered with effect from May 1997 for a series of word marks: FUNTIME, FUN TIME and FUN-TIME. The specification covers games, toys and playthings, and electronic games in Class 28. It also owns a registered EU trade mark No 000806281, filed on 21 April 1998, which is just for the word FUNTIME, and is registered for the same specification of goods. That mark now has a UK registered equivalent, No 900806281.
Here’s the Claimant’s toys:
And here’s the Defendant’s toys:
The judge, Miss Recorder Amanda Michaels, held that:
In relation to section 10(2) infringement, most consumers were more likely to associate the Funtime toys with FNAF than with the claimant’s toys. There was clear and prominent use of other brands on the defendant’s packaging, and it had never used “Funtime” as part of a longer sub-brand. The claimant’s and defendant’s goods were quite different in nature. In addition, the allegedly infringing activity spanned a 4-5 year period yet there was no evidence of confusion during that time. In those circumstances, there was no likelihood of confusion even if the defendant’s signs were seen as marks of origin.
The distinctive character of the claimant’s mark meant that it had a reputation for the purposes of section 10(3) infringement but, for the reasons given in relation to section 10(2), there would be no link in the target public’s mind between the claimant’s and defendant’s goods. Furthermore, the claimant had failed to demonstrate any actual or likely change in the economic behaviour of the average consumer of the goods for which its marks were registered. The judge did not accept that the defendant’s products were scary and unpleasant and therefore likely to cause detriment to, or tarnishment of, the claimant’s marks. Nor was there any evidence of unfair advantage; even if a link was made between the claimant’s marks and the defendant’s products, the success of the defendant’s products would stem from the link to FNAF, not the link to the claimant’s marks.
If she were wrong about infringement, the existence of the third party licence of the FNAF rights would not have amounted to due cause to use the signs. The third party was not entitled to license the defendant to breach a third party’s trade mark rights.