Andrew Powell v Martin Robert Turner
| Jurisdiction | England & Wales |
| Judge | Mr Recorder Douglas Campbell |
| Judgment Date | 24 October 2013 |
| Neutral Citation | [2013] EWHC 3484 (IPEC) |
| Date | 24 October 2013 |
| Court | Intellectual Property Enterprise Court |
| Docket Number | CASE NO CC12P02133 |
[2013] EWHC 3484 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Rolls Building
110 Fetter Lane
London
EC4A 1NL
Mr Recorder Douglas Campbell
CASE NO CC12P02133
Mr P Harris (Instructed by Walker Morris LLP) appeared on behalf of the Claimant
Ms M Heal (Instructed by Mishcon De Reya) appeared on behalf of the Defendant
Following my judgment in this matter, the Defendant now seeks permission to appeal. Ms Heal, who appears for the Defendant, has clarified that permission is sought only on the issue of validity and in particular on the issue of bad faith alone. No appeal is sought in relation to my findings in relation to the claim for an account, or the issue of infringement.
Ms Heal accepts that the proper test is set out in Part 52.3(6) and relies on both limbs thereof. In other words, first, she submits that the appeal has a real prospect of success under 52.3(6)(a); and, secondly, that there is some other compelling reason why the appeal should be heard under 52.3(6)(b).
A number of points have been made in the Defendant's written submissions, for which I am very grateful, and which I will group into categories as follows.
First of all, it is suggested that I made an error of law by deciding the issue of bad faith without reference to actual legal ownership of goodwill in the name Wishbone Ash as at February 1998. The Defendant does not suggest that there is any case directly in point but relies on the general point that "all the relevant factors specific to the particular case which pertained at the time of filing the application for registration" are to be taken into account.
It is true that I regarded actual legal ownership and bad faith as distinct points. To my mind, the important factor so far as bad faith was concerned was the Claimant's belief as to ownership, and not the actual legal position which was complex. The Claimant's belief indeed formed part of my reasoning for bad faith and I will return to this in a moment.
Although I believe that my approach is correct, I accept that it is arguable that it is not. However, since I found that the Claimant was indeed the actual legal owner of that goodwill as at the relevant date, this alleged error of law makes no difference to the result. I would have reached the same conclusion on bad faith if I had taken the issue of actual legal ownership into account.
Secondly, it is suggested that my finding that the Claimant's belief that he was the sole owner of that goodwill in February 1998, in the context of the facts and matters set out in my judgment, was both honestly and reasonably held is an unsupported conclusion given my other findings. I heard the Claimant's oral evidence in the witness box and I have no doubt that he honestly held that view. I also remind myself that, as I pointed out to the Defendant's counsel during closing submissions, she did not put it to the Claimant during his cross-examination that his conduct in making his application was dishonest, even though dishonesty had been raised in the pleadings and the allegation of dishonesty had been given as a reason as to why so many of the Claimant's witnesses needed to be cross-examined. Given...
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