Trade Marks: Firecraft - a Cautionary Tale and More Work for the IP Bar
In Evans and another v Focal Point Fires Plc [2009] EWHC 2794 Mr. Justice Peter Smith granted summary judgment to the claimants in a claim for passing off. The claimants, who had sold fire surrounds in partnership under the name "Firecraft" since 1991, sued one of the UK's largest manufacturers of gas fires for marketing its products under the registered trade mark FIRECRAFT since May 2001. The basis of the judge's decision was that the issue of passing off had already been determined in the Trade Marks Registry of the IP Office by the hearing officer, Mr. James, on behalf of the Registrar in invalidation proceedings. By his decision of 18 Nov 2008 Mr. James declared the registration invalid under s.47 (2) (b) of the Trade Marks Act 1994 on the ground that the claimants had an "earlier right" within the meaning of s.5 (4) (a) of the Act. That sub-section provides: "A trade mark shall not be registered if, or to the extent that, its use in the Un...