The Coca-Cola Company v Raymond Ketteridge
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Rimer,MR JUSTICE RIMER |
| Judgment Date | 31 October 2003 |
| Neutral Citation | [2003] EWHC 2488 (Ch) |
| Docket Number | HC 2002 C 01887 |
| Court | Chancery Division |
| Date | 31 October 2003 |
[2003] EWHC 2488 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
THE HONOURABLE MR JUSTICE RIMER
HC 2002 C 01887
Mr Peter Leaver QC and Mr Philip Roberts (instructed by Willoughby & Partners) appeared for the claimants
Mr John Fitzgerald (instructed by Stunt Palmer & Robinson) appeared for the first defendant, Raymond Ketteridge
Mr Robert Levy (instructed by Feltons) appeared for the second defendant, Raymond Joseph Ketteridge
The third defendant, Marlene Rose Ketteridge, did not appear and was not represented
I direct pursuant to CPR PD 39, para. 6, that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The two claimants are (i) The Coca-Cola Company ("Coca-Cola"), and (ii) Beverage Services Limited, which trades as Coca-Cola Great Britain ("Beverage"). They appear by Mr Peter Leaver QC and Mr Philip Roberts. There are three defendants. The first is Mr Raymond Ketteridge, who appears by Mr John Fitzgerald. The second is Mr Raymond Joseph Ketteridge, who is the first defendant's son. He appeared by Mr Robert Levy. The evidence involves references to people called "Ray", which may or may not be to one or other of the first two defendants, and for brevity, and I hope clarity, I will refer to those defendants as Ray Senior and Ray Junior respectively. The third defendant is Marlene Ketteridge, Ray Senior's wife and Ray Junior's mother. She was joined as a defendant on the basis that she was or might be the holder of assets as a nominee for Ray Senior, against whom the claimants had obtained a freezing order on 11 July 2002. No substantive relief is sought against her in the action, and she was not represented at the trial. The only matters with which I have been concerned, and upon which this judgment is given, are claims against Ray Senior and Ray Junior for the infringement of Coca-Cola's registered trade marks and for alleged passing off.
Coca-Cola is incorporated in Delaware and has been for decades the manufacturer and supplier of a well-known range of soft drinks. Beverage is its wholly-owned UK subsidiary and it carries out marketing services for Coca-Cola in Great Britain. Coca-Cola is the registered proprietor of various UK registered trade marks in Class 32 (soft drinks), including the marks COKE (No. 620845), Coca-Cola (in the form of a cursive script familiar to everyone) (No. 1256719), Diet COKE (No. 1185876), and the shape of a glass Coca-Cola bottle (No. 2000548). It is admitted that the claimants have for years manufactured and supplied soft drinks in the UK by reference to these marks. The claimants also assert (and Ray Junior admits although Ray Senior does not) that their bottles have at all times had a visually distinctive get up in which a valuable goodwill subsists. The claimants sell their products both in glass bottles (in the shape of those enjoying the shape mark No. 2000548) and in (inter alia) 500 ml polyethylene terephthalate ("PET") contoured shaped ones. In the case of PET Coca-Cola bottles (which are the relevant ones for present purposes), the distinctive features of the get up are said to be a clear bottle through which the clear brown liquid can be seen, a tapered bottle-neck and waist, a red plastic bottle cap and red plastic tamper-proof seal, five bulbous feet, and indents around the bottle from the neck to the feet interrupted by a cylindrical mid-section for the label. The features of the PET Diet Coke bottle are the same, save that it has a white plastic cap and white tamper-proof seal.
The claimants assert, and both Rays admit, that between 1996 and 2001 they achieved enormous sales of these 500 ml bottles in Great Britain (worth eight figures in 1996 and well into nine figures subsequently). Both defendants admit that the marks Coca-Cola, Coke and Diet Coke are household names, that they have become distinctive of the claimants' drinks and that valuable goodwill accrues to the claimants by reason of them. Ray Junior makes a like admission in relation to the get up, but again Ray Senior does not.
The action is the second one the claimants have brought arising out of their discovery in August 2001 of what they say was a counterfeiting operation. The operation is said to have involved the importation by Capella Food & Drinks Limited ("Capella") from Turkey of large quantities of cola contained in unlabelled bottles which the claimants assert were confusingly similarly to their 500 ml PET bottles, and the subsequent labelling of the bottles with fake Coca-Cola and Diet Coke labels. The labelling took place at Unit 6, The Engin, Nene Terrace, Crowland, Peterborough ("The Engin"). The claimants assert that the intention was then to sell and distribute the fake bottles in the UK as genuine Coca-Cola products. The operation was stopped following a raid of The Engin on 22 August 2001 by Trading Standards Officers. The claimants assert that each of Ray Senior and Ray Junior was personally involved in the operation, and claim relief against them in the nature of injunctive relief, orders for delivery up, disclosure orders and inquiries as to damages. Ray Senior denies any involvement in the operation, and I understand the essence of Ray Junior's position to be that he denies any material involvement in it.
The first action was commenced by a claim form dated 5 September 2001. The original defendants to it were (i) Cengiz Aytacli, (ii) Capella and (iii) ACO Sales and Marketing Limited ("ACO"). Mr Ernest John Harrison was added as a fourth defendant by an order of Jacob J of 16 January 2002, and the proceedings against ACO were discontinued on 30 January 2002. The action was tried before Peter Smith J in July 2002 and he gave judgment on 12 July 2002 against Mr Aytacli, Capella and Mr Harrison. He found them each liable for trade mark infringement and passing off.
Both Ray Senior and Ray Junior gave evidence at that trial. This action was started by a claim form issued on 11 July 2002, the day before judgment in the first action. Initially, the only defendant was Ray Senior. On the same day, the claimants sought and obtained from Peter Smith J a freezing and search order against him. The application was supported by an affidavit of Anthony Willoughby, of Willoughby & Partners, the claimants' solicitors ("Willoughby"), the main thrust of which was that it was the revelations at the first trial that had convinced the claimants that Ray Senior was a major player in the counterfeiting operation. On 23 July 2002, Mr Willoughby made a further affidavit in support of the claimants' application to amend the claim form to add Ray Junior and Marlene Ketteridge as defendants to the new action. The basis of the joinder of Ray Junior was again said to be that during the course of the first trial it had become apparent that he too was personally involved in the counterfeiting. This was said by Mr Willoughby to be largely as a result of Ray Junior's own evidence and the evidence given by Mr Aytacli, although in this action the claimants have disclaimed reliance on anything deriving from Mr Aytacli. The claimants also sought and obtained a freezing order against Ray Junior. The amount of the freezing order against Ray Senior, Ray Junior and Mrs Ketteridge was £320,000, largely represented by the estimated costs of the first action.
It was accepted by Mr Leaver that the findings of Peter Smith J in the first action are not binding on the defendants in this one, and so the claimants had to start from scratch. To that end, they called certain of the witnesses who had given evidence at the first trial, and the evidence in chief incorporated witness statements which had been used in that action. I now turn to the evidence. The action raises fundamental conflicts of fact, whose resolution is in part dependent on my views as to the credibility of the main witnesses. I propose, therefore, to refer to the evidence fairly fully, and will do so by summarising the evidence of the main witnesses, dealing first with the claimants' evidence and then with the defendants'. I have indicated that the claimants disclaim reliance on Mr Aytacli's evidence. In the course of relating the evidence, I will have to make reference to Mr Aytacli, and to remarks attributed to him, but when it comes to assessing whether or not the claimants establish their case against Ray Senior and/or Ray Junior I put that evidence out of consideration.
CAPELLA
I will first summarise what is known about Capella. It was incorporated on 26 October 1999. It is listed at Companies House as an agent in food, drink and tobacco. It no longer trades, but formerly traded from premises at Unit B, 17 Towcester Road, Bow, London E3. The Trading Standards Officers discovered on the day of the raid that Capella was allegedly involved in the operation at The Engin: Mr Aytacli was caught red-handed during the raid, and he made a reference to his connection with Capella. Willoughby then did a company search against Capella, which revealed that its directors were Mr Aytacli (appointed on 27 September 2000) and Ray Junior (appointed 12 March 2001). Mr Aytacli was also its secretary. They also did cross-company searches against the directors, and that revealed the name of Ray Senior. Ray Senior is not and never has been a director or other officer of Capella.
ANTHONY MCKEON
Mr Mckeon is a technical development engineer who works for Euromark Coding and Marking Limited. He demonstrates Euromark's printing machinery. He has made two witness statements, the first and...
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