Aviator v Spribe: foreign unfair competition claims cleared for take-off in English courts

On Friday, the High Court of England & Wales accepted that it was the appropriate forum to hear claims for passing off or unfair competition in numerous foreign countries. Aviator LLC v Spribe OÜ [2026] EWHC 2840 (BP) represents the first time this has happened. Let's take a closer look at Mr Justice Tappin's judgment.

Background

The logo referred to
in the judgment as
"the Aviator Image"

The case involves "crash" games. As explained the previous High Court judgment in this litigation, a "crash" game is an online gambling game where the player places a bet. A money multiplier starts at 1x and continues to climb higher (often visualised as a rising rocket or plane) until it randomly crashes down. The player aims to cash out before the "crash" to win their bet multiplied by the exit value, and to wait as long as possible to increase their potential reward. But if they don't cash out before the game "crashes," they lose their entire bet.

A crash game was launched in Georgia in January 2019 by a company associated with the claimant, Aviator LLC, using the Aviator Image (pictured above) as the logo. The software for the game was created by the defendant, Spribe.

Then, in December 2019, the defendant authorised the distribution of its own "Spribe Crash Game" under the Spribe Aviator Image and Aeroplane Device (pictured below), which were produced by a third-party design agency. The game became available in the UK in February 2020.

The defendant's logos

The claimant successfully challenged the validity of a Georgian trade mark registered by the defendant on the grounds it would infringe their copyright, with the ruling upheld by the Supreme Court of Georgia in 2025. 

The claimant argued that the doctrine of issue estoppel prevented the copyright infringement from being re-litigated in the UK. This raised conflict-of-laws issues that were settled by the Court of Appeal in October, which held that the effect of the Georgian judgment in the English proceedings would be governed by English law. In other words, the question of whether a foreign judgment gives rise to issue estoppel will be decided by the law of the forum (lex fori), regardless of the nature of the underlying claim and of the origin of the prior judgment.

The latest proceedings before the High Court concerned on questions about whether the defendant should have permission to amend its Re-Re-Re-Amended Defence and Counterclaim to introduce further claims against the claimant of copyright infringement and passing off / unfair competition by acts done in numerous foreign countries. 

Spribe had already pleaded that it is the owner of UK goodwill associated with the word AVIATOR, the Spribe Aeroplane Device and Aviator Logo and certain features of the gaming experience of the Spribe game. They were seeking permission to bring claims for passing off or unfair competition in Canada, Colombia, Ghana, Italy, Kenya, Mexico, Romania, Serbia and South Africa ("the Combined Territories") and in 28 other countries, including countries in Europe, Africa and Central and South America ("the Further Territories"). It was also seeking to bring copyright infringement claims in respect of these territories.

Furthermore, the High Court considered whether the trial should be expedited and/or whether there should be a trial of preliminary issues, as well as whether there should be an interim injunction in respect of certain foreign countries pending trial.

The Amendments

The court has discretion to allow amendments. Mr Justice Tappin held that considerations of forum (non) conveniens were relevant to the exercise of this discretion. In this case, the onus was on the defendant (as the party seeking the amendments) to show that England & Wales was clearly or distinctly the appropriate forum.

The court accepted that the foreign law would be materially similar to the English law because the jurisdictions in question were signatories to Article 10bis of the Paris Convention and/or Article 2(1) of TRIPS. The parties accepted that the UK law of passing off represents what might be called a minimalist implementation of Article 10bis, which meant that "it is reasonable to assume that any differences between English law and the applicable foreign law are unlikely to lead to Spribe failing under the foreign law if it succeeds under English law."

The claimant raised concerns that in some of the foreign jurisdictions, it would be difficult for a claimant to rely on reputation that has been built up through unlawful activity (e.g. copyright infringement or operation in contravention of gambling regulations). However, Mr Justice Tappin was not persuaded that there was any material distinction between these foreign laws and the English law related to illegality - although the matter required further pleadings, as did questions about joint liability.

Crucially, Mr Justice Tappin found that the claim of passing off or unfair competition in respect of the Further Territories was not adequately particularised, and Spribe did not seem to have a real prospect of success in the Further Territories. The amendments in respect of the Further Territories were not allowed.

But for the Combined Territories, the factors weighed in favour of allowing the amendments, because:

in my judgment it is clearly more appropriate for Spribe’s passing off / unfair competition claims to be tried in England & Wales than in ten different jurisdictions.

Expedition and Trial of Preliminary Issues

The court accepted that there would be harm to both parties to wait longer for a trial. Therefore, the main trial will be expedited to be heard in October 2027.

The court also agreed that the matter of issue estoppel was suitable to be determined as a preliminary issue. The trial of preliminary issues would be scheduled for April 2027. Mr Justice Tappin hoped this would allow enough time for any appeal and judgment on the outcome of the trial of preliminary issues before the main trial commenced.

Interim Injunction

Photo by Sagar Kumar Singh via Pexels

Spribe sought an interim injunction to prevent the claimaint from doing certain acts targeted at any of Canada, Colombia, Romania, Serbia or Italy, and requiring the claimaint to give notice at least two weeks notice of other acts in the Combined Territories. At the outset, the court found that part of Spribe's draft orders were far too vague, which was "plainly inappropriate."

The rest of the draft orders focused on acts such as launching or otherwise offering for use by members of the public a crash game under or by reference to the name AVIATOR or similar devices to the Aviator aeroplane logo.Various factors weighed in favour of refusing or granting an interim injunction. A notable factor was the real risk that the claimant will not be able to compensate Spribe for the damage it suffers if the interim injunction were not granted. Therefore, the order sought to balance between the interests of the parties:

The Aviator Parties shall not, until further order of the Court, do, or encourage or assist any third party to do, any of the following acts targeted at any of Colombia, Romania or Serbia, namely: launch or otherwise offer for use by members of the public a crash game under or by reference to the name AVIATOR or any device colourably similar to those shown in Annex 1 hereto.

PROVIDED THAT nothing in this order shall prevent third parties from continuing to offer such a crash game on any website, app or other platform on which they were offering such a crash game on or before 3 July 2026, or prevent the Aviator Parties or any other person from supplying such a crash game to any such third party for the purpose of offering it on any such platform.

The positions of Canada and Italy were handled separately (in the latter case, due to an EU-wide injunction granted by the Maltese courts), so they were not included in the order.

Final Thoughts

The substance of these claims will not be determined until 2027. There are still parallel proceedings taking place in the United States and Brazil, but with this latest ruling, the High Court seeks to avoid further proliferation of cross-border litigation between the parties. In this case, the interests of justice were best served by trying as many of the claims as possible in the same court at the same time. 

Mr Justice Tappin noted, of course, that these infringement matters would not touch the questions of validity of trade marks (which were properly left to national IP offices and courts).

Nevertheless, as English courts become increasingly comfortable handling disputes with substantial international dimensions (such as Unwired Planet and other FRAND litigation), it is highly significant to see this extend to passing off/unfair competition claims.