Tattoo artist and cactus shop in 'prick' dispute
Posted: 30th April 2018
In an unusual but instructive passing off case, the High Court has ruled that a tattoo artist to the stars must live with the cactus shop down the road having the same name as his parlour.
He had failed to establish that any confusion amongst his clients was likely to cause material damage to his business or its goodwill.
The tattoo artist, Henry Hate, who has a long list of celebrity clients, traded under the name ‘Prick’. He launched proceedings after the identically named cactus shop opened a short distance away.
He argued that the shop’s owner was passing off her business as in some way authorised by, or connected to, his parlour and was taking unfair advantage of what he viewed as an edgy, rock ‘n’ roll, trading name.
The shop owner, Gynelle Leon, said that she had carried out a Google search before opening her shop to check that no other business operating in the same field was using a similar name. However, she had not searched for the word 'Prick' by itself, fearing that the results returned would be pornographic in nature.
The opening of her shop was followed by an angry Facebook exchange with Mr Hate. Pointing to the close geographical proximity of the two businesses, he said that several of his customers had been deceived by the name clash and that he had been taking calls from confused cactus lovers. Even an official from the Royal Horticultural Society had contacted him, looking for the cactus shop’s details.
Dismissing his claim, however, the Court noted that one tattoo customer who had left a five-star review on the cactus shop's website had to be viewed as a moron in a hurry. Only one instance of a relevant customer actually being confused had been established and that had not damaged the salon’s business or goodwill in a serious way.
Although the shop and the tattoo parlour were both painted black on the outside, their get-up was otherwise very different. It was also difficult to imagine two businesses pursuing two less closely related activities than a tattoo parlour and a cactus shop. The latter’s use of the 'Prick' name did not amount to a material misrepresentation. The ruling meant that the cactus shop’s name would not have to be changed.