SUING FAKE COKE WITNESS IS NOT AN ABUSE OF PROCESS

Trade mark owners have received a boost to their fight against counterfeiters in the decision of Mr Justice Rimer in Coca-Cola Co Ltd and another v Ketteridge and others (31 October 2003). In August 2001 Coca-Cola discovered what they thought was a counterfeiting operation by a company, Capella, involving the importation from Turkey of large quantities of cola contained in unlabelled bottles which Coca-Cola asserted were confusingly similar to their bottles. The labelling took place at an industrial estate which was raided by Trading Standards Officers following a tip-off. Coca-Cola successfully sued Capella and one of its directors,for trade mark infringement. At the trial two members of the Ketteridge family (Ray Junior and Ray Senior) gave evidence and it was the revelations that arose in their cross-examination that convinced Coca-Cola that they had been major players in the operation. Both denied involvement. Ray Junior submitted that Coca-Cola's action against him was an abuse of judicial process and should be dismissed. He argued that, if Coca-Cola wanted to sue him at all, they should have sued him in the first action since they knew from an early date that he had been at the industrial estate on at least two occasions, that he owned half Capella's shares and that he was a director and a partner of the director who was found liable in the earlier proceedings.

Rimer J threw out the abuse of process argument. Ray Junior was not being harassed by successive litigation and there was no justice in the proposition that, if Coca-Cola successfully sued other defendants, they were automatically precluded from suing him later. In any event he was too late to argue the abuse of process point. If it was ever an abuse, it had to have been an abuse from the moment Coca-Cola issued its claim form, which was the time he could and should have sought to strike the action out. Instead he had put in a defence and had defended the claim on its merits. On the facts, Ray Junior had participated in the counterfeit operation, but Ray Senior hadn't.

The IPKat agrees that Ray Junior's point was untenable. Coca-Cola could hardly be expected to join Ray Junior as a defendant in the earlier trial just while he was just finishing off giving evidence in it.

Make your own Coca-Cola here
Things to do with Coca-Cola here, here, here and here
Dangers of drinking Coke here and here