Virgin’s quest to destroy VIRGINIC and small start up entrepreneurs – Richard Branson’s history of trademark bullying coming to light.
NEW YORK, NY, April 19, 2020 /Neptune100/ — The Virgin Group, a global conglomerate led by the flamboyant Richard Branson, has become a household name in sectors as diverse as commercial space flight, telecommunications, healthcare, retail and banking. With humble roots as a record shop in the 1970s the brand has become synonymous with entrepreneurial vigor. However, Virgin has a long history of heavy handed legal action against smaller companies who cannot hope to stand up against its multi-billion dollar clout. Companies whose only transgression is having names associated with the word Virgin, even where they are in completely unrelated industries where there is no chance of confusion on the part of consumers.
To get some idea of the level of absurdity Virgin’s trademark bullying has reached, look back to a case in 2012 where Virgin sent a cease and desist letter to a small New York fashion eco-label named ‘I Am Not A Virgin.’ In an interview the owner of the smaller label quipped about whether consumers would be confused by the term ‘Extra Virgin Olive Oil,’ prompting the Virgin Group to take legal action. Great joke, but not going to happen, right?
Well, unbelievably, it did. In 2015 a tiny Australian olive oil producer absurdly found itself under the scrutiny of Mr Branson. The Virgin Group may be a diverse group of companies, but it doesn’t yet appear to have become a producer of olive oil. Virgin claimed their dispute had nothing to do with olive oil but instead the fact that the trademark application covered a wide range of goods and services, including transportation services. Realistically though, the chances of a small olive oil producer suddenly becoming a rival to the larger company’s fleet of jets, trains and now spacecraft is vanishingly small.
What this all goes to prove though is that the Virgin Group has a history of increasingly absurd and frivolous claims to deny enterprising startups from enjoying the same opportunities that Virgin has. Its latest target is a company by the name of VIRGINIC, an as yet small company with big dreams to change the face of the beauty industry. VIRGINIC prides itself on having incredibly ethical vegan credentials and is breaking the mould by going beyond the now tired cliche of ‘organic’ to produce products that are truly exceptional in their pursuit and perfection of purity.
VIRGINIC sells its products via ecommerce channels, its products have no link with the Virgin Group’s offerings and the sole target of Mr Branson’s legal team is the fact that the word ‘VIRGINIC’ contains the word ‘Virgin.’ Without delving too far into the legalese, a key point in this situation is proximity, which means the similarity of the products/services offered by different companies. If they’re different then there can be more similarity between the trademarks. For instance, if a company sells a soap called ‘Ole’ Spice,’ there is a likelihood that it may be confused with ‘Old Spice.’ However, if a business is selling a cooking seasoning product, it is unlikely that confusion will occur.
So the question here is would the average consumer be confused by VIRGINIC and Virgin, bearing in mind how different their product offerings are and the different sales channels they operate through.
The answer seems obvious and when VIRGINIC LLC applied to register their trademark in the UK in January 2018 the mark was accepted and published in the Trade Marks Journal in respect of a specific class of goods which covers cosmetics. Virgin opposed this on the basis that it had also registered its trademark in respect of Class 03 and that there was a likelihood of the public confusing and associating the two brands. Virgin’s opposition failed on the basis that the average consumer would not assume a connection between VIRGINIC and Virgin and the decision awarded costs to VIRGINIC to the sum of £300. A victory for common sense and a rare example of the little guy standing up to a much bigger opponent.
Sadly though, Virgin decided to harass a small company further and appealed to the UK High Court of Justice, after all this is a company with a multi-billion pound turnover and legal costs like this are small change indeed, as opposed to VIRGINIC for which the consequences of such costs are potentially crippling for a startup in its early days. Common sense did not win out in the appeal and VIRGINIC now had to pay Virgin’s costs of £35,000. This is a massive burden on a nascent startup but in contrast a miniscule amount to a global powerhouse like Virgin.
VIRGINIC appeal to be heard was denied. Trademark law is a vital part of doing business when used judiciously and in the spirit it was intended. However, when used abusively it becomes a weapon of mass destruction to be used to destroy growing businesses by global giants who vastly outrank their victims in terms of their financial resources and destruction-hungry legal teams at their disposal.