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Skype's name too similar to that of Sky, says EU court

Thursday, May 7th 2015 by Phil Wilkinson-Jones

Consumers could be confused by the similarity of the video calling software Skype’s name and that of the broadcaster and broadband provider Sky, according to an EU court.

The General Court of the European Union’s judgement means Microsoft cannot register a trademark for Skype’s name or logo.

Microsoft first applied to register a trademark for Skype in 2004, but a year later Sky filed a ‘notice of opposition’ claiming the name was too similar to its own.

European judges, ruling in 2012 and 2013, agreed that “there existed a likelihood of confusion” of the two names.

Skype asked for an annulment of those decisions but on Tuesday (5 May), the court stood by its earlier judgements.

Judges said that “conceptually, the figurative element conveys no concept, except perhaps that of a cloud”.

“[That] would further increase the likelihood of the element ‘sky’ being recognised within the word element ‘skype’, for clouds are to be found ‘in the sky’ and thus may readily be associated with the word ‘sky’.”

'Likelihood of confusion'

The court also addressed the argument that Skype and its logo are distinctive because they are well-known by the public.

It said: “Even if the term ‘skype’ had acquired a meaning of its own for identifying the telecommunications services provided by the company Skype, it would be a generic, and consequently descriptive, term for services of that kind.”

The court said it could not take into account the “peaceful co-existence” of the two brands in the UK as a factor that could reduce the likelihood of confusion.

This is because, according to the court, the name Skype currently refers only to one specific service – video calling – whereas the brand covers a number of other goods and services.

“In addition, that coexistence has not lasted long enough to give grounds for the assumption that it was based on the absence of any likelihood of confusion in the mind of the relevant public,” it said.

Last year, Microsoft changed the name of its cloud storage product from SkyDrive to OneDrive following a ruling by the High Court that found it had infringed on trademarks belonging to Sky.

Mrs Justice Asplin also ruled that Microsoft was guilty of “passing off” the service as being connected to Sky.

She said the “average consumer” was likely to have thought SkyDrive belonged to Sky.

Writing on the Skype blog in 2005, co-founder Janus Friis said the software was originally going to be called 'Sky peer-to-peer', which was shortened to 'Skyper' and finally 'Skype'.

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