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Friday, 13 June 2008

Judge stops escalation of Alms race

Picked up by Lawtel but probably too insignificant to be noted more widely, Alm Manufacturing & others v ALM Imp Exp Ltd is a Chancery Division (England and Wales) decision of Sir Donald Rattee from last Monday, 9 June. This was an application for summary judgment against ALM Imp & Exp (AIE) and its company director in a claim for trade mark infringement and passing off. Alm was the proprietor of the trade mark ALM for various household products which it made, sold and marketed. Having traded under this mark for several years Alm discovered that AIE had placed an advertisement in a trade magazine for "ALM imports and exports limited", which offered various household and garden products. Alm made enquiries of AIE and found that, though none of the goods it sold were marked ALM, its letterheads and the director's business card were explicitly and prominently marked with the name ALM in one form or another.

Alm sought summary judgment, which AIE's director resisted, maintaining that (i) none of the goods sold by AIE were marked with the brand name ALM and could not be regarded as trade mark infringements; (ii) AIE never used the word ALM alone but only with the further terms "imports" and "exports"; (iii) neither defendant knew of the existence of Alm before they produced their own advertisement and, if there was any infringement, it was entirely innocent; (iv) the range of products which each side dealt with was quite different and did not justify an action for trade mark infringement.

Sir Donald Rattee granted Alm summary judgment. In his view the key question was not whether either defendant intended to infringe or pass off their goods as those of Alm but whether, inadvertently or otherwise, they had actually done so. On the evidence, neither defendant had a realistic prospect of defending the claim. The so-called defences were not so much defences in law as attempts to excuse or justify infringement or passing off. They were therefore irrelevant.

The IPKat is sad that this is yet another case that should never have got to court. The defendant director in this case acted for himself, motivated presumably by his belief that he had done nothing wrong and a degree of wilful blindness as to the outcome of his actions that will have inconvenienced Alm without benefiting himself.

Good excuses here and here
Bad excuses here and here

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