This dispute has it all, polo players, champagne and contracts!
It is MHCS Societe En Commandite Simple & Anor v Polistas Ltd & Ors  EWHC 3114 (IPEC).
It is a relatively complicated set of facts which boils down to the importance of clearly setting out the basis for an agreement.
Polistas became an official supplier to VCGC following a series of agreements which were entered into between it and the Claimant by email in each year from 2007 to 2010. Although the agreements varied slightly by year, broadly speaking the Claimant received some free and some heavily discounted branded polo shirts for each event in return for licensing the Veuve Clicquot brand for Polistas to sell the branded polo shirts.
|It's hard to imagine polo causing |
any sort of trade mark dispute
The situation was somewhat complicated by the fact that many of the events in question took place nine years ago. Further, the second defendant and owner of the first defendant was a litigant in person. He was also the defendants' primary witness.
The test for consent
The question of consent comes from the CJEU case Zino Davidoff SA v AG Import Ltd (and others)  CH 109. Lewison LJ summarised the position in Honda Motor Co Ltd v Neesam  EWHC 1051 para 5 (not on bailii) as:
- Consent must be unequivocally demonstrated.
- An intention to renounce the right to a trade mark will normally be gathered from an express statement.
- Although consent may be inferred in some circumstances, an actual consent (not a deemed consent) be established.
- In almost all cases, the trader must prove consent (rather than the trade mark owner being required to prove the absence of consent).
- Consent cannot be inferred from a trade mark owner's silence, the absence of a warning on the goods or the goods being originally placed on the market without any further restriction on their onward sale.
|Some seasonal veuve|
|Not to be confused with...|
- the defendant must have assisted the commission of an act by the primary tortfeasor;
- the assistance must have been pursuant to a common design on the part of the defendant and the primary tortfeasor that the act be committed; and,
- the act must constitute a tort as against the claimant.