1 “What’s in a name?” said Juliet, “[t]hat which we call a rose, by any other name would smell as sweet” (William Shakespeare, Romeo and Juliet (Duke Classics, 2012) at p 56). Despite that brave proclamation, Juliet’s name (Capulet) and Romeo’s (Montague) indicated the families they came from, families whose strife would keep them apart.

2 In the intellectual property context, a name may likewise be an indication of origin: it may be a trade mark, or its use may be actionable as passing off.

3 Local cases have considered names like “Taylor” (see Taylor, Fladgate & Yeatman Limited v Taylors Wines Pty Ltd [2014] SGIPOS 11 (“Taylor”)), “Kenzo” (see Kenzo v Tsujimoto Kenzo [2013] SGIPOS 2 (“Kenzo”)), “Valentino” (see Valentino Globe BV v Pacific Rim Industries Inc [2009] 4 SLR(R) 577 (“Valentino (HC)”)), and “Han” (see Han’s (F & B) Pte Ltd v Gusttimo World Pte Ltd [2015] 2 SLR 825 (“Han’s”)). The present case involves the name “Luke”, more specifically its possessive form, “Luke’s”.

4 The plaintiffs are Singapore companies. ¹ The first plaintiff operates a restaurant under the name, “Luke’s Oyster Bar & Chop House” at Gemmill Lane, which opened in May 2011. ² The second plaintiff operated another restaurant by the same name at The Heeren from 2014 until it closed in December 2020 because its landlord Robinsons ceased operations. The second plaintiff intends to reopen its restaurant at a new location. ³ The plaintiffs’ restaurants are fine dining restaurants.

5 The first plaintiff is the registered owner of the following mark in Class 43 of the International Classification of Goods and Services (“ICGS”) (the “Luke’s Oyster Bar & Chop House trade mark”): ⁴

6 The plaintiffs also use an unregistered mark (the “Luke’s Oyster Bar & Chop House logo”):

7 The Luke’s Oyster Bar & Chop House trade mark and Luke’s Oyster Bar & Chop House logo both contain words other than “Luke’s” – specifically, “Oyster Bar”, “Chop House” and “Travis Masiero Restaurant Group” or “Travis Masiero”. Restaurateur Travis Masiero (“Mr Masiero”), a director and shareholder of the plaintiffs, had named the “Luke’s Oyster Bar & Chop House” restaurants after his son, Lucas. ⁵ The plaintiffs contend that the word “Luke’s” by itself is distinctive of their restaurant business. The defendants dispute this.

8 The second defendant is a United States company. It opened the first “Luke’s Lobster” shack on 1 October 2009 in New York City. ⁶ Directly or through franchisees, some 37 Luke’s Lobster shacks were opened in the United States, Japan, and Taiwan, before the first Luke’s Lobster shack was opened in Singapore on 23 September 2020, at Isetan, Shaw House. ⁷ That lobster shack in Isetan was opened through the first defendant, the exclusive Singapore franchisee of Luke’s Lobster. ⁸ Luke’s Lobster shacks are small, casual, self-service restaurants. ⁹ Much of their business is “grab-and-go”, with limited seating for those who wish to dine in. ¹⁰

9 In January 2021, the defendants opened a second Luke’s Lobster shack in Singapore at Jewel, Changi Airport. ¹¹ Luke’s Lobster’s frozen seafood products are also available in NTUC FairPrice Finest supermarkets. ¹²

10 Luke’s Lobster gets its name from another Lucas: its co-founder and Chief Executive Officer (“CEO”) Lucas Alexander Holden, who is known as “Luke Holden”. ¹³

11 The second defendant is the registered owner of the following trade marks in Class 43 of the ICGS (the “Luke’s Lobster word mark” and the “Luke’s Lobster logo” respectively, and collectively, the “Luke’s Lobster trade marks”): ¹⁴

12 The Luke’s Lobster trade marks were registered in Singapore on or about 3 April 2018. ¹⁵ The marks have also been registered in other countries. ¹⁶

13 Luke’s Lobster’s best-selling product is its lobster roll, which has chunks of lobster meat served on a buttered roll:

14 The lobster roll is the most popular item sold by Luke’s Lobster in Singapore; followed by lobster bisque and the “Luke’s Trio” (half-rolls of lobster, crab, and shrimp). ¹⁷ Lobster features prominently, as one might expect from the name “Luke’s Lobster”.

15 The plaintiffs, however, assert that their Luke’s Oyster Bar & Chop House restaurants also had an established reputation for lobster dishes, although these only accounted for 5% of their restaurants’ revenue, ¹⁸ with their lobster rolls only available at lunch, and not listed on their main menu. ¹⁹

16 The plaintiffs contend that by opening Luke’s Lobster in Singapore, the defendants are liable for trade mark infringement and passing off. Would a customer, however, purchase Luke’s Lobster’s lobster rolls thinking that they came from Luke’s Oyster Bar & Chop House, or that the two establishments were associated in some way?

17 In July 2020, the plaintiffs came to know that the defendants were intending to open a Luke’s Lobster shack in Singapore. On 7 August 2020, the plaintiffs commenced the present suit, and on 11 August 2020 they sought an interlocutory injunction to restrain the defendants from doing so. The interlocutory injunction was not granted on the balance of convenience; instead an early trial was directed.

18 The plaintiffs claim against the defendants for: ²⁰

(a) trade mark infringement under s 27(2)(b) of the Trade Marks Act (Cap 332, 2005 Rev Ed) (“the TMA”) for using marks that are similar with the plaintiffs’ trade mark in respect of identical services for which that trade mark was registered;

(b) passing off, with the plaintiffs asserting that “Luke’s” is their distinctive name; and

(c) a declaration that the Luke’s Lobster trade marks are invalid pursuant to s 23 of the TMA on the basis that they were registered in breach of ss 8(2)(b) and/or 8(7) of the TMA because there is passing off in respect of “Lukes” [sic].

19 Besides the declaration of invalidity in [18(c)] above, the plaintiffs seek:

(a) an injunction to restrain the defendants from using any sign that incorporates the word “Luke’s” for goods and services identical or similar to those for which the Luke’s Oyster Bar & Chop House trade mark is registered;

(b) an inquiry as to damages or alternatively, at the plaintiffs’ option, an account of profits; and

(c) an order for the delivery up or destruction upon oath of all infringing material in the defendants’ possession, power, custody or control.

20 I will first address the claim for trade mark infringement (see [21] below), then the claim for passing off (see [120] below), and finally whether the Luke’s Lobster trade marks are invalid (see [179] below).

21 Section 27(2) of the TMA provides as follows:

22 Whether there is infringement under s 27(2) of the TMA is assessed by the step-by-step approach (The Polo/Lauren Co, LP v Shop-In Department Store Pte Ltd [2006] 2 SLR(R) 690 (“Polo”) at [8]):

23 In Staywell Hospitality Group Pty Ltd v Starwood Hotels & Resorts Worldwide, Inc and another and another appeal [2014] 1 SLR 911 (“Staywell (CA)”), the Court of Appeal explained (at [15]):

24 In comparing the marks, the court will consider visual, phonetic (or aural), and conceptual similarity (Han’s ([3] above) at [105]). This is done mark-for-mark without consideration of any external matter (Han’s at [105]; Staywell (CA) at [20]).

25 Distinctiveness is a factor integrated into the visual, aural and conceptual analysis of the marks (Staywell (CA) at [30]). Distinctiveness in the ordinary and non-technical sense refers to what is outstanding and memorable about the mark; distinctiveness in the technical sense is contrasted with descriptiveness (Staywell (CA) at [23]-[24]). In Staywell (CA), the court found that, at least in relation to hotels and hospitality services, “Regis” enjoys a substantial degree of technical distinctiveness, and there was a high degree of aural similarity between the competing “St Regis” and “Park Regis” marks because of the distinctiveness of the common “Regis” component in both the technical and non-technical senses (at [31]).

26 The plaintiffs similarly contend that “Luke’s” in the plaintiffs’ trade mark was, by itself, distinctive of their restaurants. Thus, they argue that the Luke’s Lobster trade marks (both of which have the word “Luke’s”) are similar to the plaintiffs’ trade mark, indeed confusingly so. I address this below.

27 The plaintiffs contend that here, the dominant and distinctive component of the marks is the word “Luke’s” – that is the most visually noticeable and memorable part of the marks: ²¹

(a) in the Luke’s Oyster Bar & Chop House trade mark, the word “Luke’s” is at the top, in a font that is twice the size of the words “Oyster Bar” and “Chop House”, and about three times the size of the words “Travis Masiero Restaurant Group”; and

(b) in the Luke’s Lobster trade marks, “Luke’s” is coupled with “Lobster” (either as a word or as a lobster device).

28 “Luke’s” is, however, not the only word in the plaintiffs’ mark. The plaintiff did not register “Luke’s” as a trade mark and then use that for restaurants named “Luke’s Oyster Bar & Chop House”. Instead, the plaintiffs registered a trade mark with nine words: Luke’s / Oyster Bar / Chop House / Travis Masiero Restaurant Group.

29 In Ozone Community Corp v Advance Magazine Publishers Inc [2010] 2 SLR 459 (“Ozone”), the High Court held that the “GLAMOUR” and “HYSTERIC GLAMOUR” marks were visually dissimilar (and also aurally dissimilar) (at [53] and [56]). In determining the visual similarity of the marks, the court considered the length of the marks, the structure of the marks (ie, whether there are the same number of words), and whether the same letters are used in the marks (at [49]).

30 Similarly, in Taylor ([3] above), the Assistant Registrar of Trade Marks found that the “Taylor’s” and “Taylors Wakefield” marks were not visually similar (at [73]).

31 So, too, the Court of Appeal found in Polo ([22] above) that the mark was not similar to the “POLO” word mark. The court said (at [24]):

32 Here, the plaintiffs’ trade mark consists of – Luke’s / Oyster Bar / Chop House / Travis Masiero Restaurant Group: nine words, 51 letters (see [5] above). On the other hand, the Luke’s Lobster word mark has two words, 12 letters; the Luke’s Lobster logo has one word, five letters, and a lobster device (see [11] above).

33 There are also differences in font, and design. The fonts and typefaces of the Luke’s Oyster Bar & Chop House trade mark and Luke’s Lobster trade marks are noticeably different (see [61] below). In terms of design, the Luke’s Oyster Bar & Chop House trade mark is made up almost exclusively of words (save for a separator between “Oyster Bar” and “Chop House”), while the Luke’s Lobster logo is represented by both a word (“Luke’s”) and a lobster device. Unlike the Luke’s Lobster word mark, which is a simple word mark representing “Luke’s Lobster” in a single file, the Luke’s Oyster Bar & Chop House trade mark is a composite mark comprising “Luke’s”, “Oyster Bar”, “Chop House” and “Travis Masiero Restaurant Group” occupying their respective positions within the mark. The comparison is:

34 Such differences were also noted in several other cases where the marks were found to be dissimilar:

(a) in Valentino Globe BV v Pacific Rim Industries Inc [2010] 2 SLR 1203 (“Valentino (CA)”), between the opponent’s marks and , and the applicant’s mark ;

(b) in Discovery Communications, LLC v A-Star-Education Discovery Camps Pte Ltd [2020] SGIPOS 4, between the opponent’s mark and the applicant’s mark ; and

(c) in Han’s ([3] above), where the court held that the HAN Cuisine of Naniwa sign (“HAN sign”) was similar to the Han’s word marks but dissimilar to the Han’s composite marks . The court found that the HAN sign had visual similarity with the Han’s word marks but not with the Han’s composite marks, phonetic similarity with all four of the Han’s marks, but was conceptually dissimilar to all of the Han’s marks (particularly with the Han’s composite marks) (at [122]–[143]). In the event, the court found that although the HAN sign was similar to the Han’s word marks, it was not confusingly so (at [183]).

35  These cases may be contrasted with Staywell (CA) ([23] above), where the Court of Appeal found that Staywell’s mark was similar to Starwood’s “ST. REGIS” word mark (at [38]).

36 In all the above cases, there was some common element between the marks: “Glamour”, “Taylor”, “Polo”, “Valentino”, “Discovery”, “Han”, “Regis”, but the competing marks were only found to be similar overall in Han’s (in respect of the word marks) and Staywell (CA) (comparing “Park Regis” to “St Regis”).

37 As for the plaintiffs’ contention that “Luke’s” per se is distinctive of their restaurants, case law indicates that a commonly used personal name (like “Luke”) is considered of low distinctiveness:

(a) in Taylor ([3] above), there was evidence that it was used as the trading name of a number of live businesses in Singapore (at [52]);

(b) in Kenzo ([3] above), that was likewise noted in relation to “Kenzo” and the Principal Assistant Registrar of Trade Marks moreover stated that the average member of the public is equally likely to construe the word “KENZO” as a personal name of Japanese origin, as much as a sign that may serve as a badge of origin (at [40]).

(c) in Luciano Sandrone v European Union Intellectual Property Office (Case T-268/18), the European General Court compared the “DON LUCIANO” and “Luciano Sandrone” marks, and concluded that as the first name “Luciano” was a common first name in Spain, Italy, Portugal and France (at [74]), there was only a weak degree of visual and phonetic similarity between the competing marks (at [78] and [80]), and no likelihood of confusion (at [92]-[103]).

38 In Singapore, the words “Luke”, “Luke’s” and “Lukes” are found in the registered trading names of various entities: ²²

39 “Luke” and “Luke’s” also feature in the trade marks of other parties registered in the following classes of the ICGS: ²³

40 Food products are also sold under the names “Luke’s Organic” and “Tom & Luke” (see: (accessed 17 February 2021)): ²⁴

41 In Reed Executive plc and another v Reed Business Information Ltd and others [2004] ETMR 56 (“Reed”), the plaintiff’s registered mark was “REED”, registered for employment agency services, whereas the defendant’s sign was “Reed Business Information”. The English Court of Appeal observed that “Reed” is a common surname, and the additional words “Business Information” in the defendant’s sign would be recognised by the average consumer as serving to differentiate the defendant from Reeds in general (at [37]-[38]). Indeed, the court considered the additional words “as prominent as the word ‘Reed’” (at [39]). In the event, the court found there was no likelihood of confusion (at [105]-[106]).

42 The court, citing Lord Simonds in Office Cleaning Services v Westminster Window and General Cleaning (1946) 63 RPC 30 (at 43), stated that “where a mark is largely descriptive ‘small differences may suffice’ to avoid confusion” (at [84]). In that cited case, “Office Cleaning Association” was sufficiently different from “Office Cleaning Services” to avoid passing off (at [85]). The court went on to say (at [86]):

43 The plaintiffs’ trade mark is not “Luke’s”, it is: “Luke’s / Oyster Bar / Chop House / Travis Masiero Restaurant Group” [emphasis added]. Neither are the Luke Lobster trade marks just “Luke’s”: they are “Luke’s Lobster” [emphasis added], with “lobster” either in word form, or graphically depicted by the lobster device. Adopting the English Court of Appeal’s reasoning in Reed, the words “Oyster Bar” “Chop House” and “Travis Masiero Restaurant Group” in the plaintiffs’ trade mark serve to differentiate the plaintiffs’ restaurants from other “Luke’s” establishments, as does the word “Lobster” or the lobster device in the respective Luke’s Lobster trade marks.

44 The risk inherent in the use of a name in a trade mark, was well noted by the IP Adjudicator Professor David Llewelyn in Valentino SpA v Matsuda & Co [2020] SGIPOS 8 (at [1]):

45 The words besides “Luke’s” in the plaintiffs’ trade mark serve to differentiate them from “Luke’s” per se, in much the same way as adding a surname to “Luke” or “Luke’s”, eg “Luke Masiero” or “Luke Masiero’s”.

46 The words “Oyster Bar”, “Chop House” and “Travis Masiero Restaurant Group” in the plaintiffs’ trade mark contribute to the mark as a whole being distinctive of the plaintiffs’ restaurants. Which “Luke’s” are they? They are the Luke’s Oyster Bar & Chop House restaurants that are part of the Travis Masiero Restaurant Group. Having chosen to differentiate themselves in that way, it is ironic that the plaintiffs now seek to focus on “Luke’s”, and to downplay the rest of their trade mark.

47 In effect, the plaintiffs are claiming a monopoly over “Luke’s” – at least in relation to restaurants.

48 Such an assertion was roundly rejected in Valentino (HC) ([3] above) where the High Court said (at [36]), “[t]he Appellant certainly does not have a monopoly over the word ‘Valentino’”; and in Valentino (CA) ([34(a)] above), where the Court of Appeal said (at [22]):

49 I likewise reject the plaintiffs’ attempt to claim a monopoly over “Luke’s”.

50 I find that the Luke’s Lobster trade marks are not visually similar to the plaintiffs’ Luke’s Oyster Bar & Chop House trade mark, and that the Luke’s Lobster logo is particularly dissimilar.

51 The plaintiffs submit that aurally, the marks are virtually identical. I do not agree. ²⁵

52 In Staywell (CA) ([23] above), the Court of Appeal noted that one approach would be to undertake a quantitative assessment as to whether the competing marks have more syllables in common than not, which was the approach taken in Ozone ([29] above) (at [55]) – on that approach, “St Regis” and “Park Regis” had more syllables in common than not, two out of three (at [32]).

53 The other approach, which the High Court judge adopted in Staywell Hospitality Group Pty Ltd v Starwood Hotels & Resorts Worldwide, Inc and another [2013] 1 SLR 489 (“Staywell (HC)”), was to consider if the marks have a dominant and distinctive component when each is read out (at [22]-[23]). The judge found that that was “Regis”, while “St” and “Park” were not as dominant, but not to be ignored (at [24]). The Court of Appeal upheld the finding that the marks were aurally similar (Staywell (CA) at [33]).

54 Here, the plaintiffs’ trade mark has 15 syllables; the Luke’s Lobster word mark has three syllables, and the Luke’s Lobster logo has one syllable. Only one syllable is common between the competing marks: “Luke’s”. Moreover, “Luke’s” is of low distinctiveness (see [37]-[40] above).

55 This case is very different from Wagamama Ltd v City Centre Restaurants plc and another [1995] FSR 713 (“Wagamama”) where Wagamama Ltd sued for trade mark infringement and passing off, the comparison being between its “Wagamama” restaurant, and the defendant’s subsequent restaurant “Rajamama”. As the court noted, “Wagamama” means selfishness or wilfulness in Japanese, but it was not in dispute between the parties that the word has no meaning to the overwhelming majority of the population in England (at 717). As such, a significant section of them would regard it as an entirely artificial and meaningless mark (at 732). An artificial mark has greater distinctiveness in the technical sense (see Staywell (CA) at [24]). Moreover, in Wagamama, the court noted that much of the plaintiff’s business is likely to come from oral recommendation, and as such the possibility of confusion and imperfect recollection are significant (at 736). In the event, the plaintiff succeeded in both its trade mark infringement and passing off claims (at 733 and 737). In the present case, “Luke’s” (which per se is of low distinctiveness: see [37]-[40] above) does not have the technical distinctiveness of a word like “Wagamama”, and there was no evidence that much of the plaintiffs’ business is likely to come from oral recommendation.

56 I find that the Luke’s Lobster trade marks are not phonetically (or aurally) similar to the plaintiffs’ trade mark.

57 The plaintiffs submit that the marks have a high degree of conceptual similarity given that they both denote a food and beverage establishment owned by a person called “Luke” (due to the use of “Luke’s”), and both lobsters and oysters are seafood. ²⁶ That is an over-simplification.

58 In considering conceptual similarity, the court “seeks to uncover the ideas that lie behind and inform the understanding of the mark as a whole” (Staywell (CA) ([23] above) at [35]).

59 Here, the phrases “Oyster Bar” and “Chop House” in the plaintiffs’ trade mark bring to mind a place, just like “Kenzo Estate” in Kenzo ([3] above) (at [36]-[37]). The Luke’s Lobster trade marks, on the other hand, bring to mind an animal (the lobster), or a type of food (lobster), rather than a place. While a “Lobster shack” (see [8] above) would be the equivalent of an “Oyster Bar”, here, the Luke’s Lobster trade marks simply state “Luke’s ‘Lobster’” (in word or by the lobster device).

60 The phrase “Travis Masiero Restaurant Group” in the plaintiffs’ trade mark indicates that the plaintiffs’ Luke’s Oyster Bar & Chop House restaurants are part of a larger group – the Travis Masiero Restaurant Group. Moreover, the restaurant group bears the name “Travis Masiero” rather than “Luke’s” or “Luke’s Oyster Bar & Chop House”. The Luke’s Lobster trade marks, on the other hand, make no reference to any restaurant group, or any person other than the eponymous “Luke”.

61 Further, the words in the plaintiffs’ trade mark are all in capital letters, upright, and in gold typeface. The impression given is one of formality and sophistication (see Han’s ([3] above) where the same observation was made about the HAN sign (see [34(c)] above) (at [142])). In contrast, the Luke’s Lobster word mark only has the initials “L” capitalised. “LUKE’S” in the Luke’s Lobster logo is curved, with the word forming the body of the lobster, and “lobster” is conveyed by a lobster device rather than a word. The Luke’s Lobster trade marks come across as casual, even playful (especially the Luke’s Lobster logo).

62 I find that the marks are conceptually dissimilar.

63 As discussed above, I consider the marks to be visually dissimilar, phonetically (or aurally) dissimilar, and conceptually dissimilar. On the whole, the Luke’s Lobster trade marks are dissimilar to the Luke’s Oyster Bar & Chop House trade mark, and the Luke’s Lobster logo especially dissimilar.

64 The marks are all registered in Class 43 of the ICGS. The plaintiffs’ registration is for (among others) “restaurants”; the defendants’ registrations are for “restaurants featuring lobster” and “restaurant services” (see [5] and [11] above).

65 In Staywell (CA) ([23] above)), the Court of Appeal stated that registration in the same specification within a class establishes a prima facie case for identity (at [40]). In this regard, I accept that the Luke’s Lobster trade marks are used in relation to goods or services identical with or similar to those for which the plaintiffs’ trade mark is registered.

66 This does not mean there is no distinction between the defendants’ Luke’s Lobster shacks and the plaintiffs’ restaurants – there is (see [76], [79] and [132]-[140]). But these differences should more appropriately be considered when evaluating the likelihood of confusion. In Staywell (CA), the Court of Appeal stated (at [61]):

67 That was, however, part of the discussion on likelihood of confusion, rather than in relation to the issue of similarity of services (on which the court had already concluded that the services were identical or similar: Staywell (CA) at [42]-[43]).

68 The next question is whether there is likelihood of confusion arising from marks-similarity and goods/services-similarity (see [22]–[23] above). The plaintiffs accept that for trade mark infringement the likelihood of confusion must arise from marks-similarity and goods/services-similarity. ²⁷

69 As I have found the defendants’ Luke’s Lobster trade marks to be dissimilar from the plaintiffs’ Luke’s Oyster Bar & Chop House trade mark, strictly speaking, the question of confusion does not arise, as the Court of Appeal observed in Polo ([22] above) (at [25]). But even if there is similarity of marks, and similarity of goods or services, it does not necessarily follow that confusion will automatically arise. A broader approach is appropriate to determine if there is confusion.

70 The confusion analysis is, however, relevant to the passing off claim, and so I consider if there is likelihood of confusion, assuming that the Luke’s Lobster trade marks are regarded as similar to the plaintiffs’ trade mark. Nevertheless, if there is only a low degree of similarity between the marks, the likelihood of confusion would be low (see Staywell (CA) at [96(a)]).

71 What needs to be established is a likelihood of confusion as to the origin of the goods or services in question – that extends to the situation where the average consumer mistakenly assumes some kind of economic link or connection between the goods or services of the opposing parties (Hai Tong Co (Pte) Ltd v Ventree Singapore Pte Ltd [2013] 2 SLR 941 (“Hai Tong”) at [73]–[74]). The likelihood of confusion required is that which is to be expected amongst a substantial portion of the relevant segment of the public – that does not need to amount to a majority, but it must go beyond a “de minimis” level (Hai Tong at [78(e)]).

72 “Initial interest confusion” does not constitute “confusion” for the purposes of ss 8(2) and 27(2) of the TMA. As the Court of Appeal stated in Staywell (CA) ([23] above) (at [113]):

73 In the case of restaurants, the relevant time for evaluating confusion is thus the point of purchase.

74 In Staywell (CA), the Court of Appeal provided a non-exhaustive list of factors which would be admissible in the confusion inquiry (at [96(a)]-[96(b)]):

(a) Factors relating to the impact of marks-similarity on consumer perception: the degree of similarity of the marks themselves, the reputation of the marks, the impression given by the marks, and the possibility of imperfect recollection of the marks. The greater the similarity between the marks, the greater the likelihood of confusion.

(b) Factors relating to the impact of goods-similarity on consumer perception: factors concerning the very nature of the goods without implicating any steps that are taken by the trader to differentiate the goods. This includes the normal way in or the circumstances under which consumers would purchase goods of that type, whether the products are expensive or inexpensive items, the nature of the goods and whether they would tend to command a greater or lesser degree of fastidiousness and attention on the part of prospective purchasers, and the likely characteristics of the relevant consumers and whether they would or would not tend to apply care or have specialist knowledge in making the purchase.

75 In relation to restaurants, the following discussion in Han’s ([3] above) is instructive (at [162] and [175]) (see also [34(c)] above):

76 In the present case, too, the plaintiffs’ restaurants and the defendants’ Luke’s Lobster shacks are brick-and-mortar establishments. The Luke’s Lobster trade marks are indeed prominently displayed at the defendants’ restaurants, as the following photographs show (with the locations of the Luke’s Lobster logo marked): ²⁸

77 Having registered the Luke’s Oyster Bar & Chop House trade mark, the plaintiffs then did use it much. It is used on the shopfront window of the plaintiffs’ Gemmill Lane restaurant; ²⁹ it is also on business cards of the plaintiffs’ representatives. ³⁰ However, it is the Luke’s Oyster Bar & Chop House logo (see [6] above) - which is not a registered trade mark - that is used on the plaintiffs’ Facebook ³¹ and Instagram pages, ³² the plaintiffs’ website, ³³ the plaintiffs’ menu, ³⁴ and the plaintiffs’ products. ³⁵ Gregory Ian Coops (“Mr Coops”) of Asian Strategies Pte Ltd (“Asian Strategies”) – which did a survey for the plaintiffs (“the Survey”) – confirmed that the Luke’s Oyster Bar & Chop House logo “was the one that was most commonly in use”. ³⁶ That survey, which the plaintiffs relied on for both its trade mark and passing off claims, did not use the plaintiffs’ registered trade mark at all, but only the unregistered Luke’s Oyster Bar & Chop House logo, a point I will return to (see [192] below).

78 For the present, I would simply observe that given the limited use of the plaintiffs’ Luke’s Oyster Bar & Chop House trade mark, that mark did not have a strong reputation (and neither were the plaintiffs’ restaurants widely known). Indeed, Mr Coops’ evidence was: ³⁷

79 These are some photographs of the Luke’s Oyster Bar & Chop House restaurants: ³⁸