This Kat has from time to time complained that cases have reached court which should have been settled long before they got there. Here's one such case. And don't think that this is just the opinion of a fictitious feline: the judge said so too. The case is NOCN (Formerly National Open College Network) v Open College Network Credit4Learning  EWHC 2667 (IPEC), a 25 September 2015 decision of Judge Hacon in the Intellectual Property Enterprise Court, England and Wales (the celebrated IPEC).
Judge Hacon dismissed the trade mark infringement action in respect of the word marks but upheld the claims for trade mark infringement and for passing off with regard to the "swoosh" mark, In his view:
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* It was significant that NOCN had not tried to restrain the defendant's use of the term "open college network", since the evidence showed that that term and the letters "OCN" were used descriptively;
* Any goodwill owned by the local networks was associated with their respective regional names, not with the letters OCN alone;
* Even if goodwill in "open college network" and "OCN" had arisen in the past, whether the affiliated networks had formed an unincorporated association or a class was irrelevant. This was because, in either event, NOCN owned no part of it;
* The counterclaim for invalidity under the Trade Marks Act 1994 s.5(4)(a) on the basis of prior rights failed, but it did succeed on the basis of a customary sign;
* Had the mark been valid, the defendant would have infringed it;
* NOCN's "swoosh" mark was not invalid for bad faith and was validly registered.
* The "swoosh" mark was infringed by the defendant's logo, and the claim for passing off succeeded.
The IPKat notes the judge's final words, at :
I now know that between them the parties, both charities, have incurred well over £400,000 on fees in this litigation. A very strong recommendation to settle at the case management conference was not taken up. The laudable cause of encouraging adult education will presumably have to endure an equivalent cut in funding solely because this dispute was not resolved at an early stage. Such an outcome is much to be regretted.
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