Extreme Networks Limited v Extreme E Limited

This dispute was about whether a later brand application by Extreme E could coexist with an earlier mark owned by Extreme Networks for certain services. The opposition was limited to parts of Class 41 and 43, and the key earlier service left in issue was “booking of seats for shows”.

The later application covered a broader entertainment and event footprint, including cultural activities, organisation of sporting and cultural events, exhibitions, motor vehicle races, live motorsport races, motoring-related live shows and events, sports competitions, and award or gala ceremonies. The question was not whether these services were identical. It was whether they were similar enough, when combined with the similarity of the marks, to create a likelihood of confusion.

The Court of Appeal was not starting from scratch. It was deciding whether the High Court had been right to overturn part of the hearing officer’s specialist assessment. That matters because trade mark similarity disputes often involve judgment calls rather than bright-line rules.

The High Court had accepted an argument that organising events or shows is different from providing a separate seat-booking service. It treated ticket or seat-booking for an organiser’s own event as incidental to the core activity of organising the event. On that basis, it held that the services in issue were not similar to “booking of seats for shows”.

The Court of Appeal had to decide whether that was the correct approach. It also had to address a wider point of principle: how appellate courts should review UKIPO decisions where the hearing officer’s reasoning is short and compressed, as often happens in registry decisions.

The legal issue was whether the hearing officer had made an error of principle in finding that certain Class 41 services were similar to the earlier service of “booking of seats for shows”, so that a likelihood of confusion analysis could properly follow. The court also considered the correct appellate approach to this kind of evaluative decision.

The judgment restated familiar trade mark principles. Similarity of services is assessed by looking at relevant factors such as nature, purpose, method of use, users, trade channels, competition and complementarity. The court stressed that there is a spectrum of similarity. If there is no similarity at all, confusion is not considered. But if there is some similarity, even a low degree, the decision-maker must then assess likelihood of confusion globally.

The Court of Appeal allowed the appeal and reinstated the hearing officer’s decision. It held that the hearing officer had not made an error of principle in finding similarity between the earlier seat-booking service and the later event-related services.

For non-sporting services, the court accepted that “booking of seats for shows” referred to a separate service of the kind a ticket agency provides. But that did not mean event organisation and seat-booking were dissimilar. The court said the High Court had wrongly focused on whether seat-booking was merely incidental to the organiser’s core activity. That distinction may matter when asking whether services are identical, but it has little relevance to similarity.

The court held it was open to the hearing officer to find overlap in users and to find the services complementary. It gave a practical example from the judgment itself: a business group may both sell tickets for third-party events and own or operate entertainment venues. That kind of market reality can support similarity.

For sport-related services, the court also disagreed with the High Court. It said sporting or motorsport events could fall within the broad idea of “shows”, and that the fact some sporting events may not always involve bookable seats did not make the services dissimilar.

The commercial lesson is straightforward: brand clearance must cover adjacent services, not just your headline offer. If you run events, hospitality, entertainment, ticketing, online booking or venue services, customers may see those activities as linked even if your internal business model treats them as separate functions.

This matters especially for startups. A founder may describe the business narrowly at launch, for example as a racing series, a live event brand or a cultural platform. But trade mark risk is assessed through the eyes of the average consumer and by reference to the service specifications, not just your pitch deck. If consumers could think the same undertaking is responsible for both services, similarity may be found.

The case also shows why appeals are a poor substitute for early clearance work. Once a specialist hearing officer has made a reasoned evaluative decision, overturning it is difficult. The safer commercial move is to test the brand before filing, before marketing spend and before expansion into related services.

If you are choosing a new brand, use this case as a practical filing checklist. The point is not that every adjacent service creates a conflict. The point is that you should test how your proposed mark sits within the wider customer journey around your business.

For example, an events business may touch promotion, ticketing, hospitality, venue services, merchandising and digital content. A motorsport or entertainment brand may also overlap with live shows, competitions, exhibitions and booking services. Those links can matter even where your company does not think of itself as a ticketing business.

One of the most useful parts of the judgment for business owners is the court’s explanation of appeals. Trade mark similarity and confusion are multi-factorial evaluations. That means a specialist decision-maker weighs several factors together rather than applying a single formula.

The Court of Appeal said an appellate tribunal should only intervene if there is an error of law or principle, or an identifiable flaw such as a gap in logic, inconsistency or failure to consider a material factor. It is not enough that another judge might have reached a different conclusion. The court also recognised that hearing officers often give compressed reasons because these comparisons are routine specialist work and many cases proceed without evidence.

Commercially, that means first-instance trade mark decisions carry real weight. If your filing strategy is weak, it may be hard to rescue later through appeal. Better specifications, better searches and better early risk assessment usually save more money than post-decision litigation.