Battle of the Brands: Delta Air Lines and Marriott Hotel Chain

Following the opposition by Delta Air Lines, the UK Intellectual Property Office (IPO) restricted Marriott's trademark protection to exclude services such as retail, hotel, restaurant, bar and lounge, resort lodging and reservations services for hotel accommodation.

Marriott subsequently appealed the decision, but the appeal was rejected, and the IPO's decision was upheld by the High Court, which ruled that the services offered by the companies were similar and there was a likelihood of confusion.

Marriott has since opened numerous Delta-branded hotels, prompting Delta Air Lines to bring a claim against Marriot since it asserts Marriott is attempting to pass off its Delta-branded accommodation as being connected with Delta Air Lines.

The tort of passing off is used to protect unregistered trademark rights in the UK.

This action is based on the concept that a trader does not have the right to represent their goods or services as those of another trader, for example, when someone has copied the packaging or brand of another to confuse the source of the goods and services.

The key elements for a claimant to prove in a passing off claim:

• Demonstrating their products have acquired sufficient goodwill, described as "the benefit and advantage of the good name, reputation, and connection of a business" (Inland Revenue Commissioners v Muller & Co's Margarine Ltd), and are known by a distinguishing feature.
• Proving the defendant has falsely represented their goods (either intentionally or unintentionally) and that this is, or is likely to, lead consumers into thinking the defendant's goods or services are those of the claimants.
• As a result of the defendant's misrepresentation, proving damage has been caused, for example, diversion of sales to the defendant, damage of reputation or loss of the opportunity to expand into a broader geographical field.

If a passing off claim is successful, the claimant may be awarded damages in relation to the loss of sales or the damage to goodwill, may seek an account of the defendant's profits or in the event of an injunction, the claimant may be entitled to require the infringing goods to be delivered to them or destroyed.