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Firecraft Trade Mark Dispute - Summary Judgment

Written by Jody Tsigarides on 20 November 2009

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A UK Intellectual Property Office decision on the invalidity of a trade mark and the existence of a viable passing off claim has been used to gain a Summary Judgment in the High Court.

The dispute first arose when Focal Point Fires PLC ('the defendant') registered a trade mark application for the term 'Firecraft'. Invalidity action was subsequently issued by William and Susan Evans ('the claimant') on the basis that they owned substantial rights in the term and that the registration is invalid based on the law of passing off under the Trade Marks Act 1994 s.5(4)(a).

The UKIPO found that the claimant had generated enough goodwill from the sale of their fireplaces under the brand that they could establish misrepresentation that could damage their business.

The registration was subsequently declared invalid.

The claimant then sought a Summary Judgment from the High Court on the basis that the Defendant had no real prospect of defence as a cause of action for passing off had already been found by the UKIPO.

The application was accepted and Summary Judgment was awarded on the basis that it would be wrong to allow the matter the be heard again after a binding decision had been made.

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