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Thursday, 6 November 2014

Interim injunctions against newcomers: Anglia and a predictable routine

 New angles on Anglia. Anglian Windows Ltd v Anglian Roofline Ltd is an end-of-October ruling of Judge Richard Hacon in the Intellectual Property Enterprise Court, England and Wales which deals in a routine, run-of-the-mill manner with a routine-run-of-the-mill issue: the availability of interim injunctive relief to an established business against a trader introducing a new and arguably confusingly similar business name into the established business's market.

In this dispute (so far noted only on Lawtel), Anglian Windows ('Windows') had since 1999 been using a logo which took the form of the word ANGLIAN with the words HOME IMPROVEMENTS written underneath in smaller lettering, together with a picture of a knight with a banner on a horse (above, right).  Windows' UK business was large in financial terms, grossing £229 in its most recent trading year. Windows' brand was also quite well known, being advertised on television. The word "Anglia", apart from being a punning Ford marque for a small saloon car that was "angular", is also used to refer to the bulgy bit on the right of a map of England, an area generally called "East Anglia" -- part of the country from which Windows originated.

Also found online ...
could this be relevant?
 Anglian Roofline ('Roofline'), a company incorporated in August 2014, had no apparent connection with East Anglia. Windows feared that the use of this name was likely to infringe two of its registered trade marks: ANGLIAN ROOF TRIM for building materials (Class 19) and ANGLIAN HOME IMPROVEMENT (goods in Class 19, services in Class 36). Accordingly Windows sent a letter before action and received a telephone call from Roofline's solicitors. However, further letters from Windows went unanswered and, aside from Companies House details, little was known about Roofline.

In these proceedings for interim injunctive relief, Windows submitted that although, as far as it was aware, Roofline had not yet traded, it could be inferred that Roofline intended at least to trade where ANGLIAN was included in its trading name, passing itself off as being associated with Windows and thus infringing its registered trade marks.

Judge Hacon granted the relief sought:

* The application stood to be determined under the usual American Cyanamid principles relating to the grant of interim injunctive relief on the balance of convenience, bearing in mind whether either party might suffer irremediable harm ane having first ascertained that there is an arguable case.

* On these facts Windows had an arguable case that there was no serious doubt that. if Roofline were trading under a name which included ANGLIAN, there was a likelihood of misrepresentation and confusion leading to passing off and trade mark infringement.

* In relation to irreparable harm, Windows relied on potential damage to its reputation: Windows was not in control of Roofline's services which Windows characterised as a "cowboy company" and there was no evidence in relation to Roofline's financial standing  which meant that. if Windows were to succeed at trial, there might be no funds available to compensate it for damages incurred between the hearing of this interim relief application and trial.

* In contrast, Windows' own undertaking was given where it was in good financial health.

Cat and roofline
* Since Roofline had neither made submissions nor filed evidence, the balance of irreparable harm favoured the grant of an injunction. In similar cases, businesses that had just begun trading usually argued that the grant of an interim injunction restraining the use of a trading name in effect decided the entire proceedings where it was impracticable to return to using the trading name, if it were to succeed at trial. In such cases, more than usual attention had to be given to an applicant's case.

* In this specific instance Windows had a very strong case in relation to goodwill, since the likelihood of misrepresentation and confusion arising from trade mark infringement through the use of ANGLIAN was strong. The balance of justice favoured the grant of an injunction.

At different times, interim injunctions have been easier and more difficult to obtain, creating an aura of uncertainty about the application of American Cyanamid -- the fortunes of which have also waxed and waned. In general, though, it seems that the application of its principles has been surprisingly consistent: what changes is the circumstances -- and therefore the result of the application of the court's discretion.

More on Anglia here
Cat on a Hot Tin Roof here and here

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