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Thursday, 23 October 2014

Artjunkie snatched from the jaws of villainy, but no happy ending

It's unusual for the IPKat to feel disappointed when the party in the right emerges from court as the victor, but here's a case in point: Alison J. Hendrick v Tony Knight (O-323-14), a decision of Appointed Person Geoffrey Hobbs QC back in 17 July on appeal from the UK Trade Mark Registry, is about as depressing a piece of trade mark litigation as anyone might hope to read on this weblog.

In short, the facts as established in this and earlier litigation would lead any reasonable person, in possession of his wits and faculties, to the conclusion that Tony Knight is something of a serial trade mark scoundrel. He has gone to some lengths to undermine IP rights belonging to Dame Vivienne Westwood OBE [see Westwood v Knight [2010] EWPCC 16, noted by the IPKat here, and Westwood v Knight [2011] EWPCC 11, noted by the IPKat here, as well as Katpost here] and this time his victim of choice was Scottish designer Alison Hendrick.

In this instance Geoffrey Hobbs QC was hearing an appeal against decisions to reject Knight's oppositions to Hendrick's applications to register a skull device mark and the word mark ARTJUNKIE. The Hearing Office had held, unsurprisingly, that Knights own skull device mark was invalid and he was ordered to pay costs. Knight appealed on the grounds that the Hearing Officer had failed to carry out a full and proper investigation into the evidence, some of which was lost or wrongly excluded, and that his decisions were influenced by comments made about Knight in an earlier judgment in unrelated proceedings.


The Hearing Officer had found that Hendrick was the senior user of the marks and that Knight had both copied her signs and registered his device in bad faith. As if that wasn't enough, it was held that Knight had flouted rules and directions, been aggressive in his approach to the litigation and had provided both false and unreliable evidence -- to the extent that it was appropriate to order him to pay the costs of the proceedings on an indemnity basis.


Solicitors and counsel acting for Hendrick pro bono sought the costs of the appeal under section 194 of the Legal Services Act 2007.  They argued that, following a determination of the appeal in Hendricks favour, a referral could be made to the court under section 76(3) of the Trade Marks Act 1994 so as to trigger section 194 retroactively and entitle them to costs. Hendrick also suggested that the case be referred to the Director of Public Prosecutions on the basis that Knight had falsified evidence in an attempt to pervert the course of justice.

While the Appointed Person dismissed Knight's appeal, he ordered that the parties were to bear their own costs of the appeal and that no referral would be made by the Tribunal to the Director of Public Prosecutions.

* There was nothing of legal interest in the substantive grounds of appeal. In the absence of manifest error or serious procedural irregularity, the Hearing Officer was entitled to find that Hendrick was the senior user of both the device and word marks, as well as the creator of the device that Knight had invalidly registered. 

* The question of Knight's conduct was more interesting. The Appointed Person agreed that there was ample justification for the Hearing Officers condemnation of Knights approach to the conduct of the litigation, and there was no sign that statements made about Knight in an earlier, unrelated, judgment had influenced the decisions. Regarding the Registry proceedings, the Hearing Officer was justified in concluding that Knights failure to produce originals or better copies of evidence, despite directions to do so, meant it was inevitable that he would be regarded as the source of false and unreliable evidence. In regard to the conduct of the appeal, he had adopted much the same approach. He was tirelessly obstructive, unreliable and aggressive when challenged. Further, his account of the hearing in the proceedings at first instance was substantially inaccurate and unreliable.

Knight had failed to comply with directions to file evidence in the Registry proceedings, which he was then seeking permission to adduce on appeal on the basis that the evidence had been filed but was lost. It was not possible to grant these requests (i) in light of his earlier non-compliance and (ii) in the absence of evidence that he had, in fact, duly filed evidence in the Registry proceedings.

Allegations of document fabrication should be determined following cross-examination and with the safeguards that apply to the giving of expert evidence in High Court proceedings under the Civil Procedure Rules (CPR 35). A failure to do so in the present case did not amount to a serious procedural irregularity, but did require a more detailed review of the decisions on appeal than would have been necessary or appropriate in other circumstances.

* As to costs, there was no power under Rules 67 and 73(4) of the Trade Mark Rules 2008 to make an award for costs incurred by a non-party in Registry proceedings, at first instance or on appeal to the Appointed Person. Nor could the procedural requirements for referral to a court under section 76(3) of the Trade Marks Act 1994 and rule 72 of the Trade Mark Rules 2008, for the purposes of seeking an award for costs where representation was pro bono under section 194 of the Legal Services Act 2007, be satisfied at such a late stage of proceedings.

* Should Knight's conduct be referred to the Director of Public Prosecutions? While anyone who considers that a crime has been committed -- such as an attempt to pervert the course of justice by falsifying evidence -- may raise the matter with the appropriate authorities. However, no special weight is given to a referral made by a tribunal. In the present case, making a referral would only add strife between the parties. Knights behaviour had been condemned at both first instance and on appeal, and in the circumstances, a referral would kill any prospects and possibilities of the parties disengaging from hostilities.

This Kat is pleased that Knight's appeal was dismissed, but there was no serious possibility of it succeeding.  He is however quite distressed that people like Knight, who go around filing other people's trade marks as though they are his own and then trying to grind them down through persistent, dishonest and apparently vindictive litigation, should be allowed to carry on using the trade mark system without any form of supervision. The District Court of The Hague issued an anti-trade mark filing injunction as long ago as 2011 in a comparable case (noted by the IPKat here).



Is this true for
IP rights?
Merpel is puzzled about the reference to the parties "disengaging from hostilities".  Alison Hendrick neither invited nor initiated any hostilities, unless the creation of a new brand can be said to be the initiation of hostilities, and it was never her wish nor her intention to engage in them: she was merely being trying to defend, through the Trade Mark Registry and the Appointed Person, the rights which every British government in recent years has ceaselessly described as being so important to the development and sustaining of a viable enterprise culture.  Merpel feels that a failure to have Knight bound by law -- if not by hand and foot -- to stop him filing other people's IP and then harassing them is an unsightly blot on the fair and improving landscape of IP litigation: if she only knew how to spell pusalliminuous, pusillenanious, pussylanimous pusillanimous she'd be using it right now ...

Some further reading on recent cases involving naughty litigants: 

  • Successful claimants in design infringement action jailed for fabricating evidence: Utopia Tableware v BBP Marketing Ltd [2013] EWHC 3483, noted by the IPKat here
  • Patent owner does enough to merit being sent to prison but runs into a merciful judge: Brundle v Perry [2014] EWHC 979. noted by the IPKat here.

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