Focal Point Fires Get Their Fingers Burned

Nationally renowned ACID members Evans fireplaces, trading as Firecraft, manufacture and sell beautiful hand carved stone fireplaces and associated accessories. As an established name within their market place, Firecraft are naturally vulnerable to copying and passing off.

In 2006, Evans became aware that Focal Point Fires PLC, a heating appliance manufacturer, had registered a UK trade mark for the word FIRECRAFT and were selling a range of gas fires under the Firecraft mark supported by a major ad campaign.  Frustratingly for Evans this triggered numerous enquires from members of the public asking for one of “their” fires. In addition, Evans stockists began calling to ask about the supposed new range of fires they were now selling. 

Each time such a request was made, Evans had to explain that this was not their brand but Focal Point’s. The public were clearly confused.

Unhappy that their brand was being diluted, Evans contacted ACID Accredited Law Firm McDaniel & Co who wrote to Focal Point asking them to surrender their mark on the basis that Firecraft was distinctive of Evans and that Focal Point were clearly ‘passing off’. Focal Point refused to back down, so Evans applied to revoke Focal Point’s mark through the UK Intellectual Property Office (UKIPO) who last month found in Evans favour and declared Focal Point’s trade mark invalid. Focal Point has until the 16 December 2008 to decide whether to appeal the decision which would be made to either the Appointed Person or to the High Court. 

Comments ACID accredited lawyer, Andrew Lee of McDaniel & Co, ‘The UKIPO was required to consider what would have been a fair and normal use of the mark and not rely solely on what actually happened at the filing date. The evidence which Focal Point gave showed that they did not promote the mark in the same manner prior to the national advertising campaign in 2006.  However, the fact that the Focal Point mark was identical to the Evans mark and used on goods sold side by side to the type Evans produced, meant that it was inevitable that people who associated Firecraft with Evans would assume that a range of Fires under the same mark came from or was authorised by Evans” 

Bill Evans, Owner of Evans Fireplace Centre and Firecraft says: “It’s a relief to get the whole thing over with and get our name back. We have been building Firecraft since 1991 with a solid reputation for quality and service. It is not very nice to know someone can come along and ride off the goodwill we have worked hard to develop, for their own benefit, without our permission or knowledge.  I would like to thank everyone that gave us their support, including those that provided witness statements.”

Adds Dids Macdonald, ACID’s CEO, “Although Focal Point had registered their mark in 2000 and the instances of confusion did not come to light until 2006 onwards, Firecraft’s case proves it is better late than never to take action. It also proves the point that “first to file” is not necessarily a sound defence if there are grounds for invalidation, as was proved in this case.” 


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