The Intellectual Property Enterprise Court has recently handed down its decision in Flowerbx Ltd v Flowers Box London Ltd [2026] EWHC 2233 (IPEC) upholding that Flowerbx Ltd’s FLOWERBX mark was validly registered, and had been infringed by Flowers Box London Ltd.
The Claimant, Flowerbx Ltd, started trading in 2015 under the FLOWERBX name selling luxury flowers both to consumers and businesses. In April 2017, the Claimant applied to register the FLOWERBX mark, securing its registration in July 2017. The Claimant’s business was later expanded to sell a range of homeware, as well as cards, gift boxes, and chocolates.
The Defendant, Flowers Box London Ltd, was not incorporated until April 2019. Whilst pre-incorporation activity was not relied on in its defence, one of the Defendant’s directors had stated that he had started trading as a florist under the FLOWERS BOX name in late 2017, selling flowers in gift boxes, and produced a small number of documents evidencing this use. Following its incorporation, the Defendant began selling flowers and bouquets of all kinds, targeting the luxury end of the market, and later went on to offer various gift items, including fruit, alcoholic drinks, cakes, balloons and soft toys.
The Defendant likely became aware of the Claimant not long after it was incorporated, as by July 2019 it had received a number of messages from Trustpilot, clearly intended for the Claimant. Indeed, in February 2022, the Defendant wrote to Trustpilot to complain about the confusion after being credited with a poor review intended for the Claimant. On the other hand, the Claimant first became aware of instances of confusion between its brand and the FLOWERS BOX brand in late 2023 and further instances followed. In 2024 and again in 2025, the Claimant became aware that the Defendant was using photographs from the Claimant’s website on its own website, and wrote to the Defendant alleging copyright infringement. The images were taken down. In February 2025, the Claimant sent a cease-and-desist letter to the Defendant. No immediate response was received, though the Defendant defensively filed applications for the marks FLOWERS BOX and FLOWERS BOX LONDON covering a range of goods/services, including flowers in Class 31 and related retail services in Class 35. The Defendant ultimately responded to the Claimant’s letter, denying knowledge of the Claimant, rejecting the proposed settlement terms, and alleging that the Claimant’s registrations were in breach of Section 3(1)(c) of the Trade Marks Act 1994. The Claimant responded with a formal letter of claim, and subsequently issued proceedings on 22 July 2025. The Defendant filed a counterclaim that the Claimant’s mark should be declared invalid on the grounds that it was descriptive.
The validity of the Claimant’s FLOWERBX mark was assessed in connection with certain goods and services in Classes 31 and 35 including flowers, plants and foliage, and related retail services. Whilst the Claimant submitted that its mark was a neologism which did not consist exclusively of descriptive elements, the judge took the view that this argument was unsustainable when all of the Claimant’s evidence and pleadings emphasised that the mark was pronounced “flower box”. As such, it was held that the mark would be regarded as the combination of these two words, and not a true neologism.
Having held that the mark would be perceived as “flower box”, the judge went on to consider whether the mark would enable the average consumer to immediately identify, without further thought, a characteristic of the goods/services in question. The Defendant had claimed that the mark plainly denotes a “box of flowers” but did not specify which characteristic of the relevant goods/services (which were flowers/plants per se, or related retail services) this was supposed to describe.
Unlike phrases such as “shoe box”, “horse box” or “hat box”, the judge held that the phrase “flower box” was not one with an established meaning of which the relevant public would be aware. Instead, consumers would attribute the most natural and literal meaning to phrase “flower box”, assuming that the phrase referred to some sort of cardboard delivery box or gift box for the purposes of transporting flowers. Alternatively, consumers could assume that the phrase refers to some sort of box in which flowers are grown, along the lines of a window box or a planter. In any event, it was held that the phrase would ultimately be deemed to describe some sort of box for flowers, rather than the flowers within that box. As a result, the mark was deemed not to be descriptive of flowers, plants or foliage, or of retail services relating to these goods, and therefore was inherently distinctive for these goods/services.
Whilst the Defendant accepted that, as of February 2026, the Claimant’s mark had acquired a distinctive character, it was disputed that this distinctive character existed as of 17 April 2019, when the Defendant’s company started trading. Having considered all of the evidence filed, it was held that whilst there were some gaps in the annual turnover figures pre-2019, there was evidence of significant marketing spend and media coverage in 2018 and early 2019. As a result, it was held that the Claimant’s mark had, as of early 2019, acquired an enhanced distinctive character in relation to its Class 31 goods and Class 35 services.
There was no dispute that the goods/services in question were identical. With regard to the marks, it was held that the signs FLOWERS BOX and FLOWERS BOX LONDON, and the figurative versions of these marks (some of which included a large stylised “B” element), all shared some level of visual similarity with the Claimant’s FLOWERBX mark, due to the high degree of overlap of the wording. Moreover, the signs were all similar phonetically, due to the high degree of similarity between the phrases “flower box” and “flowers box”, and conceptually, as they all combine the concept of a flower/flowers and a box. Overall, the Defendant’s marks were all deemed to share a high level of similarity with the Claimant’s mark, even where those elements included the additional word “LONDON” or the stylised letter “B”.
In support of the existence of a likelihood of confusion, the Claimant had put forward multiple examples of instances of actual confusion between the parties’ respective marks in the marketplace. The Defendant claimed, however, that the evidence did not show actual confusion but a series of administrative errors, arising after the point of sale, and/or due to consumers being careless. However, the judge held that there were too many instances for them all to be attributed to carelessness on the part of consumers and, given that both the Claimant and Defendant are relatively small players in a crowded market, the only likely explanation for the repeated instances of confusion, were the high degree of similarity between the parties’ marks and goods/services. As such, a likelihood of confusion was found, and the claim to infringement under Section 10(2)(b) succeeded.
The Claimant claimed that the Defendant had taken an unfair advantage of its reputation in its mark, and tarnished that reputation.
Initially, it was held that the same evidence relevant to the Section 10(2)(b) claim also supported the existence of a link between the parties’ marks.
Whilst it was held that the Defendant had not set out to take unfair advantage of the Claimant’s reputation, it was clear from the evidence that consumers had purchased from the Defendant in the mistaken assumption that they were purchasing from the Claimant. Moreover, the Defendant had benefitted from 5-star Trustpilot reviews intended for the Claimant. Whilst the Defendant had undertaken its own marketing efforts, this did not preclude it from having unfairly benefited from the reputation in the Claimant’s mark, and so it was held that the Defendant had taken an unfair advantage of the Claimant’s reputation.
With regard to the Claimant’s case on detriment, it was held that whilst the Defendant’s use of its mark had led to a change in the economic behaviour of consumers, the evidence was not sufficient to establish that the level of consumer complaints was such that there was a serious risk of tarnishment or detriment to the Complainant’s mark.
Finally, whilst it was held that the initial adoption of the marks by the Defendant might have been innocent, as the Defendant was clearly aware of the Claimant by July 2019, the judge noted it was hard to see how any of their later marks could have been adopted innocently. Moreover, as more than innocent adoption of a mark is required in order to establish due cause, the Defendant was held not to have due cause for its use of its signs. The Claimant’s infringement claim under Section 10(3) succeeded.
This case is a useful reminder of the importance of considering the descriptive nature of a mark in connection with the exact goods/services of interest. Whilst a mark might, in some contexts, be deemed descriptive, if it does not have any meaning in connection with the goods/services at issue, there is no reason why it shouldn’t be held to be inherently registrable for those particular goods/services.
Moreover, this case emphasises the importance of carefully documenting any evidence of actual confusion in the marketplace, due to the clear weight that such evidence can carry in court. Trade mark owners should therefore keep clear records of any instances of actual confusion of which they become aware. Likewise, clear records should be maintained by trade mark owners of their own use of their mark in order to substantiate claims of reputation and/or enhanced/acquired distinctiveness, should the need to do so arise.