In Alticor Inc v Nutrigreen Health Products Ltd, a decision of Appointed Person Geoffrey Hobbs on 9 November that has recently been posted on the UK IPO website, the figurative trade mark NUTRILIFE (right) was held to be sufficiently visually and conceptually different from the earlier registered word mark NUTRILITE to outweigh the aural similarities. Accordingly there was no likelihood of confusion.

Registration of the NUTRILIFE mark was sought for blends of plant extracts relating to health products, formulated into vitamins and minerals (Class 5). Alticor objected to the registration on the basis of its prior registration and use of the trade mark NUTRILITE in relation to preparations in Class 5 (minerals or vitamins for use as nutritive adjuncts to foodstuffs). The Trade Mark Registry concluded that, although the words NUTRILIFE and NUTRILITE, if used in isolation, would result in a likelihood of confusion, if the totality of the NUTRILIFE mark was taken into account, the differences between them outweighed the similarities and had sufficient individualising effect to avoid the existence of a likelihood of confusion.

Alticor's appeal failed. According to the Appointed Person, words did not always speak louder than the non-verbal elements with which they might be combined. Nor, if they were combined with such elements, did they always or necessarily speak in the same way or to the same effect as they otherwise would.