UK Channel Management Ltd v E! Entertainment Television Inc. and Another
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE LEWISON |
| Judgment Date | 10 October 2007 |
| Neutral Citation | [2007] EWHC 2339 (Ch) |
| Court | Chancery Division |
| Date | 10 October 2007 |
| Docket Number | Case No: HC07C02275 |
[2007] EWHC 2339 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
INTELLECTUAL PROPERTY
Royal Courts of Justice
Strand, London, WC2A 2LL
MR. JUSTICE LEWISON
Case No: HC07C02275
Mr. John Baldwin QC (instructed by Messrs. Wiggin LLP) for the Claimant
Mr. Geoffrey Hobbs QC (instructed by Messrs. SJ Berwin LLP) for the Defendants
Approved Judgment
UK Channel Management Limited is the owner of a number of channels which are shown on television in the United Kingdom and are designated by the letters UKTV. One of those channels is UKTV STYLE which operates in two forms: UKTV STYLE itself and UKTV STYLE PLUS ONE which I infer contains the same programmes but broadcast one hour later. The defendant E! Entertainment Television Inc. proposes to launch a new television channel early in 2008 under the name THE STYLE NETWORK. UK Channel Management Limited brings this action in order to prevent that launch claiming that the use of the name THE STYLE NETWORK to designate the new channel will both infringe its registered Community trade mark and will also amount to passing off. The Community trade mark is a graphic representation of UKTV STYLE although as Mr. Hobbs QC, who appears for the defendants, points out, the “K” is elided into the “U” so that it is figurative rather than simply a word mark.
The claimant has participated in what is called an omnibus survey. An omnibus survey is a survey carried out on behalf of many clients who pay a market research organisation to include questions in a survey. It was the intention of the claimant to rely upon the results of that survey and the question of survey evidence came before Rimer J on 6 th September this year. At that stage the omnibus survey had been carried out and the claimant was also in the process of carrying out another survey which has been designated “Malivoire 1” in the current application in deference to Mr. Malivoire, the claimant's expert.
Rimer J, having considered the question of evidence said this:
“…. I have come to the view that the claimant ought not to be at liberty to call any expert evidence from its polling organisation as to the basis of the completed and current surveys without the prior leave of the court.”
The “completed” survey, to which Rimer J refers is the omnibus survey and the “current” survey is what I call Malivoire 1. Rimer continued:
“As regards the first survey, Mr. Mitcheson is not asking here and now that leave be refused. His position is that if the claimant wishes to rely on the fruit of that survey, the claimant must obtain leave to adduce any expert evidence explaining it. Of course the questions put to the public in that survey have been put without the prior leave of the court but Mr. Mitcheson is not suggesting that that will automatically rule the survey out of court. All that he is submitting, and I agree, is that the claimant should make an application to the court with regard to the adducing of expert evidence in relation to that first survey and the defendants will then deal with that application on its merits.
12. As regards the current survey, I propose to direct that within seven days of today the claimant disclose to the defendants the questions being put to those being canvassed and that, within 14 days thereafter, the defendants must make their response to the claimant as to whether or not, or to what extent, they agree with the appropriateness of the questions. I direct that the claimant may also only adduce expert evidence in relation to that survey with the prior leave of the court. I will further direct that the claimant must, by no later than 2 nd October 2007, issue an application notice returnable before the applications judge for directions with regard to the adducing at the trial of any expert evidence upon which it wishes to rely.”
There are now before the court three surveys in issue. The first is the omnibus survey, the second is Malivoire 1 and the third, which has been prepared in response to certain criticisms levelled by the defendant at Malivoire 1, has been designated Malivoire 2.
In his witness statement in support of the application, Mr. Simon Baggs, who has the conduct of the proceedings on behalf of the claimant, says that the claimant intends to rely on the results of the first element of the omnibus survey as evidence of fact in relation to evidence of “acquired distinctiveness”. He continued in...
To continue reading
Request your trial
-
Marks and Spencer Plc v Interflora Inc. (A Company Incorporated Under the laws of the State of Michigan, USA) and Another
...not probative of anything I was required to decide. I therefore excluded that evidence. The point arose again in UK Channel Management Limited v E! Entertainment Television Inc. The admission of such evidence was considered in two stages. At the first stage the question was whether the evid......
- (1) A & E Television Networks LLC (2) AETN UK v Discovery Communications Europe Ltd
-
Esure Insurance Ltd v Direct Line Insurance Plc
...v Hutchison 3G Ltd [2005] ETMR 61, and subsequently followed by Rimer J in U K Channel Management Ltd v E!Entertainment Television Inc [2008] FSR 5. Under this practice, case management directions are given at an interim stage requiring the parties to seek the directions of the court as to......
-
Specsavers International Healthcare Ltd and Others (Appellants/ Claimants) v Asda Stores Ltd (Respondent /Defendant)
...111 I am unable to accept these submissions. The practice to which Mr Mellor referred was described by Rimer J in UK Channel Management Ltd v E! Entertainment Television Inc [2008] FSR 5. He, and Pumfrey J before him in O2 Holdings at an interim stage ( [2005] ETMR 61), directed that neit......
-
THE USE OF EXPERTS IN LEGAL PROCEEDINGS IN SINGAPORE INVOLVING INTELLECTUAL PROPERTY RIGHTS
...Ltd v Hutchison 3G Ltd[2005] ETMR 61, and subsequently followed by Rimer J in U K Channel Management Ltd v E! Entertainment Television Inc[2008] FSR 5. Under this practice, case management directions are given at an interim stage requiring the parties to seek the directions of the court as ......
-
The Consumer as the Empirical Measure of Trade Mark Law
...Insurance Corporation vGovernment Insurance Office of NSW (1991) 28 FCR 511,528–9; UK Channel Management Ltd vE! Entertainment Inc [2008] FSR 5 at [45]; Whirlpool CorpvKenwood Ltd [2009] RPC 2 at [35].58 Windsurfing Chiemsee Produktions n 5 above at [52]; AW Spalding & Bros vAW Gamage Ltd[191......