BP Amoco plc v John Kelly Ltd and Glenshane Tourist Services Ltd
| Jurisdiction | Northern Ireland |
| Judge | Girvan J |
| Neutral Citation | [2000] NICh 18 |
| Court | Chancery Division (Northern Ireland) |
| Date | 16 June 2000 |
Neutral Citation no. (2000) 2096
Ref:
GIRB3050
Judgment: approved by the Court for handing down Delivered:
16/06/00
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
CHANCERY DIVISION
-------- 1998 No. 2671
BETWEEN: BP AMOCO PLC Plaintiff
and
JOHN KELLY LTD AND
GLENSHANE TOURIST SERVICES LIMITED Defendants
------
JUDGMENT
GIRVAN J
Introduction
The plaintiff BP Amoco Plc (“BP”) is a well known multi national corporation which
is concerned in exploration for and production of oil and gas, refining and the marketing and
sale of oils, fuels, lubricants and chemicals. It brings this action against the first defendant
John Kelly Ltd (“Kelly”), a Northern Ireland registered company also involved in the sale
and distribution of oils, fuels and lubricants though on a much smaller scale. Kelly operates a
small chain of petrol filling stations in Northern Ireland operating under the trade name TOP.
One of its licensees or franchisees is the second defendant which runs a filling station under
the TOP brand at Glenshane Road, Maghera, County Londonderry (“the Glenshane filling
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station”). BP’s case against the defendants is that they are infringing BP’s UK registered
trade marks numbers 1469512 and 1469513 by using the colour green on the whole or a
substantial part of the exterior of the TOP service stations in Northern Ireland and that they
are thereby committing the tort of passing off their TOP branded filling stations and premises
and oils, fuels and lubricants as and for those of BP or as otherwise connected with BP’s
business. BP seeks injunctive relief and other remedies arising out of the alleged
infringement of its rights.
Mr Hobbs QC and Mr Drennan appeared on behalf of BP at the trial of the action
which took place between 8 and 15 May 2000. Mr Shipley and Mr Martin appeared for the
defendants. The court is indebted to counsel for their careful and helpful presentation of the
case and for the quality of their written and oral submissions.
The Factual Background Relating to the BP Stations
BP operates a chain of some 22,000 petrol filling stations worldwide of which 1,700
are located in the United Kingdom and of which some 145 are in Northern Ireland. These
filling stations which vary in size and layout operate in a common dark green livery, the
precise shade of which can be defined by reference to a standard called Pantone 348C. It is
BP’s case that it holds valid trade marks giving it the exclusive right to use that colour as the
brand identifier of petrol filling stations within the United Kingdom. It claims that the use of
that colour is distinctive of its network and of membership of that network. BP uses a logo
consisting of the two letters B and P in yellow large case set within a green shield outlined in
yellow. From early times green and yellow have been used by BP as identifying colours.
According to its document “An Image for the 90s” the colours green and yellow were
decided on in France in 1923 following an evidently agreeable lunch in a restaurant near
Paris. Through the years since the early 1920s BP’s livery in its filling stations has
periodically changed though the pervading theme always was to incorporate green though not
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always of the same shade together with yellow as the key colours. In the 1950s white was
added as one of the colours. In the 1950s and 60s the white, green and yellow livery was
generally applied though not in a uniform manner. In November 1986 a new imaging project
called “Project Horizon” was initiated following a marketing strategy group meeting. It was
decided to have a universally consistent system of presenting filling stations and the new re-
imaging scheme was to cover corporate brand image, lubricants, tankers and all other aspects
of BP’s business. A major research programme was undertaken. The research revealed that
there was little differentiation between BP and its competitors apart from colour, pole signs
and canopy edge which were the critical communicators. Colour was intrinsically more
important than architecture. BP was the best recognised brand in the UK, the difference
being the use of colour. The colour green together with yellow and the shield were strong BP
equities and of critical importance. MAS Research Marketing and Consultancy Limited in
their findings to BP concluded that based on research conducted one could not be dogmatic
about the actual shade of green and yellow that could or should be used. At worst they
should retain their familiarity. One could be dogmatic that in the future a green, yellow and
neutral spectrum should be used.
In July 1988 the BP Board of Directors approved the budget for Project Horizon with
a rollout date of July 1989. A mock up site was developed in Oxfordshire to experiment with
suitable designs. The relevant steering groups and contractors experimented with pole signs,
shades of green and all aspects of service stations. Yellow as BP’s second colour was used as
the accent colour. Consideration was given to consumer expectations particularly ensuring
that service stations’ signage was clear and visible enough to allow motorists to slow down
without any risk of accidents. According to Mr Perry, the project manager, the new design
was arranged so that the motorist could see a canopy and pole sign from a distance and
quickly identify the site as BP even though it could be too far to read the BP name and logo.
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