Up in smoke? Trademark infringement and e-cigarettes – Lexology

This is an updated version of an article first published in the May 2017 issue of CITMA Review, the journal of the Chartered Institute of Trade Mark Attorneys (CITMA).

As e-cigarette use grows, so do the dangers of trademark infringement for well-known brands, as Trademark Attorney Claire Jones explains.

E-liquids have taken hold in the UK at an astonishing speed, with vape shops offering a dazzling array of flavoured products popping up on nearly every high street. But, whether by ignorance or design, many e-liquid products piggy-back on the familiarity and reputation of well-known consumer brands.

From a consumer’s perspective, the ability to go into a vape shop and purchase a flavour named after a favourite soft drink or confectionery makes absolute sense. Selections might be made based on nostalgia (perhaps the taste of an ideal childhood breakfast involving a hazelnut and chocolate spread) and brand reputation, but do these e-liquid businesses have the right to use those brand names? Have they licensed the recipes and trademarks, as current practice would suggest? Overwhelmingly, the answer to these questions appears to be no.

Heady rise

The modern-day e-cigarette was first launched in Beijing in 2004 by a Chinese pharmacist named Hon Lik. The battery-powered devices are designed to simulate the effects of smoking by heating a nicotine liquid into vapour that is then inhaled by the user. The liquid, which contains propylene glycol, varying levels of nicotine and flavourings, is known as e-liquid or e-juice.

Global use of e-cigarettes and e-liquids has grown exponentially in recent years, and the promotion of such products, especially via the internet and high-street vape shops, is on the rise. Numerous e-liquid strengths and flavours are available from a range of sellers, all of which are in competition with each other to grab a share of

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