Licensing in UK Law

Nor does the wider interpretation undermine the protection which a trade mark is intended to afford customers. For their quality assurance customers rely on the self-interest of the owner. They assume that if a licence has been granted the owner can be expected to have chosen a suitable licensee and imposed suitable terms. They also assume that during the currency of any licence the licensee, as well as the owner, is likely to have an interest in maintaining the value of the brand name.

"(33) The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made.

Thus there is a limit to the extent to which the commercial purpose of the initial period of the agreement can be used to interpret the provisions relating to the matching rights which determine the basis upon which business may be conducted by the parties after the initial period of the agreement.

There is a risk that damages may not be an adequate remedy having regard to the cap on damages and the exclusion of consequential losses. But more significantly, in my judgment, this is not a case where it can be said that the grant would be out of all proportion to the requirements of the case or that the order would operate with extreme (or any) harshness on Rangers.

In my view, a particularly significant factor in interpreting the Agreement is the context that it was part of a settlement of the derivative action regarding RRL: SDI Retail Services Ltd v King [2017] EWHC 737 (Ch).

In my judgment, the correct interpretation of authorities such as Hick v. Raymond & Reid [1893] AC 22 is that adopted by His Honour Judge Richard Seymour QC in Astea (UK) Ltd v. Time Group LTD [2003] EWHC 725, [2003] All ER (D) 212, where he said that the question whether a reasonable time has been exceeded is

"This means that the proprietor can trim his design right claim to most closely match what he believes the defendant to have taken. The defendant will not know in what the alleged monopoly resides until the letter before action, or, more usually, the service of the statement of claim. This means that a plaintiff's pleading has particular importance. It not only puts forward the claim but is likely to be the only statement of what is asserted to be the design right."