Even Wiser, rule the three wise women

Back in March, the IPKat wrote:

"If you search the Scottish Courts website under "intellectual property" you won't find this -- which is why the IPKat missed it on his prowl -- but Wise Property Care Limited v White Thomson Preservation Limited and others [2008] CSOH 46, a passing-off decision of Lord Matthews (Outer House in the Court of Session), was posted on the Scottish Court website this morning. ... In this action the Pursuer [says the IPKat: that's the Scottish term for 'claimant' or 'plaintiff'] White Preservation, a trading division of Wise Property Care, successfully defended an application for recall of interim interdict (interim injunction) which had been granted without notice against White Thomson Preservation Limited and others. ...

... the surname of the brothers involved was 'White'. The Pursuer successfully argued that the Defenders' use of the name White Thomson Preservation Limited was confusingly similar to their trading division 'White Preservation' and that the Defenders' use of that name passed off their business and services as those of the Pursuer.

As ever it's the facts that make the case quite interesting, with the Defender trying to pick up and run with goodwill which, he was effectively saying, had been lying dormant. The suggestion that this somehow gave him a defence to passing off which is assessed on an objective basis was quite rightly rejected by the judge...."

This information came from the IPKat's valued Scottish friend Gill Grassie of Maclay Murray & Spens, who has now informed him that a three-woman court of appeal has dismissed the Defender's appeal.

Right: it seems the Kat has something to "grouse" about ...

Once again, the decision is not to be found among the IP cases on the Scottish Courts website, but you can read it here. Says Gill:

"The three judges unanimously rejected the appeal and agreed that the first instance judge was entitled to reach the view that he did in granting the interim interdict. Whilst there is no new point of law here it provides a useful reminder of how difficult it can be to challenge a first instance decision on interim interdict successfully, given that it is a discretionary one and that it is therefore necessary to show essentially that the decision was based on a error of law or was an unreasonable one. It seems to me that the approach taken here by the Appeal Court was the correct one and that the first instance judge exercised his discretion appropriately in granting the interim interdict".