TV3 loses fight over use of 3 marks

A district court in Sweden has dismissed Swedish television broadcaster TV3 AB's trademark infringement claim against mobile phone operator HI3G Access AB in relation to the latter's use of the trademark 3 (Case T 10412-03, July 1 2005).

TV3 has been broadcasting television programmes since 1987. It filed the claim on the basis of HI3G's use of the number three, both as a numeral (a figure '3' in a stylized three-dimensional shape) and in written form, for services relating to the provision of news, sports, entertainment and other information in conjunction with motion pictures. The services were provided via handheld mobile phone devices and offered to subscribers to HI3G's mobile telephone services.

TV3 relied on its corporate name, TV3 AB, and its registered device trademarks, both consisting of the digit '3' in a stylized two-dimensional design. TV3 argued that it had the exclusive right to the number three, both as a digit and in word form, and irrespective of the style used, in relation to the provision of services in the form of news, sports, entertainment and other information, using motion pictures. One of the challenges faced by TV3 was that a digit, in particular one belonging to the basic numerical series zero to nine, has no inherent distinctiveness and that a sole digit must be free for all to use.

Despite considerable evidence that TV3's marks had acquired secondary meaning in relation to television broadcasting services, the District Court of Stockholm held that TV3 could have no exclusive right to the numeral '3' or the written version. It could only have rights in its marks in the style registered.

Moreover, and even with the ever increasing overlap between television, telephone and computer services, the court held that there were essential dissimilarities between TV3's services and those provided by HI3G.

The court concluded that the trademark used by HI3G was sufficiently dissimilar from the name and marks owned by TV3. Despite finding that TV3's mark was well known, the court held that the differences between the parties' marks and services meant that there was no infringement.

TV3 has filed an appeal.

Peter Skoglund, Advokatfirman Delphi & Co, Stockholm