|Not Now TV - the two services|
are not apparently related
EMI submitted that there was an arguable case of infringement and it would suffer uncompensatable and irreparable damages to its registered rights unless injunctive relief was granted. EMI also claimed that there really was a pressing need to get the case to court, there being special grounds within the meaning of Article 104(1) of the CTM Regulation for not staying the trade mark infringement claim.
John Baldwin QC was unmoved by EMI's pleas. In his view:
- Since the court could not be satisfied that there was no serious issue to be tried in connection with the allegation of trade mark infringement, he would pass no further comment on the mertis of either side's case.
- Looking at the balance of convenience, he asked what might happen in the event that a stay either were, or were not, ordered. In his view there was a certainty of real and substantial damage to
Sky if an injunction were granted.
Sky, which planned to launch its new service within the coming month, had no alternative name to fall back in within that time-frame -- and if EMI did secure an injunction,
Sky's preferred name of NOW TV would be lost forever since it was fanciful to suggest that
Sky would eve change the name back if it was injuncted now but won at trial. In contrast, EMI had been considering launching the NOW branded music channel for many years, but they still had no definite plans, having made no investment or commitment. If it transpired that the value of EMI's NOW trade mark value was indeed destroyed by
Sky's conduct, that value could be quantified, there being no certainty that EMI would suffer very substantial damage of the kind which money could not compensate. All in all, this suggested that the balance of convenience lay in favour of letting the NOW TV launch go ahead.
- No pressing need for an expedited trial had been shown: the NOW TV service launch would have gone ahead before any likely date for an expedited trial, and it wasn't as if EMI was about to implement any actual plan to exploit its trade mark in connection with any TV channels or platforms. Nor were any special grounds for not staying the action demonstrated.
It's now or never, here and, if you can bear it, here
Oh won't you stay? here