The case provides an interesting analysis of how the enforcement of marks with a relatively low distinctive character may play out.

Background 

The claimant started trading under the name FLOWERBX in 2015 and quickly built up a significant business offering flowers to end consumers and to high-end luxury and fashion businesses. By June 2026 the business had acquired a substantial following, and UK turnover had grown to approximately £4.3 million.

The defendant first starting using the term FLOWERS BOX LONDON (and other similar terms) in late 2017 to supply flowers, bouquets and plants, as well as gifts and gift cards, through online sales.

FLOWERBX issued an infringement claim in 2025, and the defendant counterclaimed that the FLOWERBX mark was invalid under s.3(1)(c); the provision designed to prevent traders from registering words that other traders might legitimately want to use in the course of their business.

Distinctiveness 

The judge found that there are two classes of consumer: the general public, who might buy flowers as a consumer, and a narrower cohort of fashion or leisure businesses, who might seek floral decorations for commercial use. Private consumers would pay an average amount of attention when purchasing the goods/services, whilst the business customers would be likely to pay more attention.

The judge then set out a detailed assessment of the current law on descriptive/non-distinctive marks, which would make a useful read for anyone considering this specific issue. In particular, the judge said that “the alteration of a descriptive word or a combination of descriptive words to form a 'neologism' may take a mark out of the ambit of s 3(1)(c), depending upon the impact on the mark as a whole, in effect whether there is a perceptible difference between the combination and the mere sum of its parts”.

In considering the combination of the words “flower” and “bx”, the claimant’s own evidence suggested that the mark would be pronounced as FLOWER BOX and as such is descriptive of a box for flowers. If this is correct, the issue becomes whether those two words enable the average consumer to immediately identify that the term was a brand, or whether the words denote some characteristic of the goods/services in issue.

There was no evidence before the court that consumers would be aware of a “flower box” in the same way as they would be aware of a shoe box, or a hat box. Therefore “flower box” cannot be said to have one or more established meanings of which the relevant public would be aware. Instead, the judge held that the average consumer will attribute “flower box” to “the most natural and literal meaning of the words, describing a box in which flowers are contained, whether to be transported or delivered to a retailer or wholesaler, or to the end customer, perhaps in a cardboard box designed to fit through a letter box, or in a gift box of some kind.” She did not accept the defendant's implicit submission that the words might be taken as descriptive of flowers alone, as that would require the consumer to ignore the word “box”.  

Further, and in any event, the judge held that the mark had acquired distinctiveness for the goods for which it was registered. The evidence before the court showed that a significant proportion of the relevant class of persons, both the general public and businesses, had come to identify the claimant's goods and services as originating from the claimant through its use of the mark.

Therefore, the descriptiveness attack failed.

Infringement 

The claimant relied on both s.10(2)(b), that the marks/goods are similar and there would be a likelihood of confusion, and s.10(3) that the claimant’s marks have a reputation and the defendant’s activities would take unfair advantage of, or otherwise harm, that reputation.  

Likelihood of confusion

The marks FLOWERBX and FLOWERS BOX were highly similar (even when the latter included the word LONDON, or a logo element). The goods (flowers) were identical.

There was evidence before the court of actual confusion. The judge worked through some of the examples at paragraph 65 of the judgement. None of these “confused individuals” were called for cross examination (which is not unusual in the IPEC). However, it is clear that there were a lot of people who were mistaken between the two businesses.

The defendant tried to claim that these were examples of administrative errors, arising after the point of sale, rather than relevant confusion. The judge disagreed, finding that there were simply too many examples of confusion to be explained away by consumers being careless. Concluding with “these parties have 'crashed into each other' despite there being many other florists in the market and online. In my judgment, the only likely explanation for that lies in the high degree of similarity of the Signs to the Mark and the close similarity of the parties' activities”.

Therefore, the s.10(2)(b) claim succeeded.

Reputation 

The claimant's case was primarily that the defendant's use of the FLOWERS BOX took unfair advantage of its reputation in the FLOWERBX mark. However, it also alleged that the defendant’s use of FLOWERS BOX would dilute the reputation of, or tarnish the FLOWERBX mark, by making a link to goods and services of inferior quality.

Given the finding on s.10(2)(b), it was easy for the judge to find that the defendant’s activities would cause a link to the claimant.

Relevant to this claim is that the defendant may not have intended to take unfair advantage of the claimant’s reputation, but it traded with knowledge of the claimant and its business, at the latest from July 2019 when the defendant first received a Trustpilot review intended for the claimant.

There was evidence that consumers had bought the defendant's goods/services in the mistaken belief that they were buying those of the claimant. In some cases, the customer stated after the event (in reviews), that they had intended to use the claimant because of the quality of its goods/services. This was clear evidence that the defendant’s activities caused a change in the economic behaviour of consumers.

The judge concluded “I am satisfied that the defendant took unfair advantage of the distinctive character or repute of the Mark, as it gave the defendant an advantage which was unfair because it enabled the defendant to profit from the reputation achieved by the claimant's hard work and marketing efforts. In my judgment, that suffices to show that a transfer of image has actually occurred and that the defendant took unfair advantage of the reputation of the Mark. That was the objective effect of its use of the Signs”.

Interestingly the judge stopped short of finding that the defendant’s activities tarnished the claimant’s brand, on the basis that the evidence of this was limited. However, the s.10(3) claim succeeded, based on unfair advantage.

Take aways 

At first blush, this result might seem surprising, in particular that the term FLOWERBX is distinctive of flowers. However, the evidence here was compelling, the claimant has a very strong following, and consumers were actively confused; believing that the goods of the defendant were those of the claimant. If this is the case, then the claimant’s mark must have some trade mark significance.

Marks that are descriptive or of low distinctive character can still be powerful, either if they are just distinctive enough to survive an attack, or because the owner has “acquired distinctiveness” in them.  

When pursing infringement of these types of mark, it is going to be critical to provide sufficient evidence of enhanced distinctiveness, reputation, and confusion. It is clear from the judgment that the judge would have liked to have seen more evidence of confusion in this case. However, this is of course difficult in some forums (such as the IPEC, where trial time and cross examination are limited), it is good to see that the judge took a pragmatic view in the circumstances.  

Case details at a glance

Jurisdiction: England & Wales
Decision level: IPEC
Parties: Flowerbx Limited V Flowers Box London Limited
Date: 07 September 2026
Citation: [2026] EWHC 2233 (IPEC)
Decision: https://dycip.com/2026-ewhc-2233-ipec