Lifestyle Equities CV & Anor v Frasers Group Trading Limited (formerly called Sportsdirect.com Retail Limited) & Ors [2026] EWCA Civ 583

[2026] EWCA Civ 583Case No CA-2025-001724
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 1417 (Ch)
ON APPEAL FROM THE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
MR JUSTICE MARCUS SMITH
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/05/2026
Before
LORD JUSTICE PETER JACKSONLORD JUSTICE ARNOLDLORD JUSTICE ZACAROLI
Between
LIFESTYLE EQUITIES C.V.Claimants/LIFESTYLE LICENSING B.V.Respondents(1) FRASERS GROUP TRADING LIMITED (formerly called SPORTSDIRECT.COM RETAIL LIMITED)Defendants/(2) [omitted]Appellants(3) SDI (BROOK UK) LIMITEDAppellant(4) RUNNEL LIMITED (formerly called SDI (BROOK EU) LIMITED)Appellant(5) SDI (BROOK ROW) LIMITEDAppellant(6) REPUBLIC.COM RETAIL LIMITEDAppellant
Adrian Beltrami KC (instructed by Winston Taylor International LLP) for AppellantsThomas St Quintin (instructed by Brandsmiths) for RespondentsHearing Hearing date: 21 April 2026
Approved JudgmentThis judgment was handed down remotely at 10.00am on 12 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This appeal concerns the ability of the proprietor of a registered trade mark to recover, in an action for infringement of the trade mark, losses suffered by licensees of the trade mark, in the absence of an application being made to register those licences. It turns on the construction of s.25(3)(b) and s.30(6) of the Trade Marks Act 1994 (“TMA 1994”).[2]The first claimant (and first respondent to this appeal), Lifestyle Equities C.V. (“CV”) is the registered proprietor of certain trade marks (the “Marks”). The second claimant (and second respondent to this appeal), Lifestyle Licensing B.V. (“BV”) is the exclusive licensee of the Marks.[3]The Marks are also the subject of a number of sub-licences to various other entities. The details of the sub-licences, including the identity of most of the sub-licensees, the date on which they were entered into, their period and their scope, are unclear. It is the respondents’ policy to keep, so far as possible, the details of the sub-licenses confidential. Accordingly, only one of them (to an entity called Harvest Group UK Ltd) is registered under the provisions for voluntary registration of transactions affecting registered trade marks under Part 1 of TMA 1994.[4]The judge proceeded on the basis that the sub-licences were granted by BV and are non-exclusive licences. It was common ground before us that the Harvest licence is an exclusive licence, albeit one that does not qualify for the protection in s.31, as explained further below. Nothing turns on this, or on the fact that the relevant licences are in fact sub-licences, and their details are unimportant for the purpose of the legal issue raised on this appeal.[5]CV and BV contended that the defendants (the appellants on this appeal), by various acts committed in 2014 and 2015, infringed the Marks. The claim form was issued on 11 September 2015, and served together with particulars of claim on the same date. CV and BV sought, among other things, declarations of infringement, injunctions and an inquiry as to damages or an account of profits, relating to a single EU Mark and a single UK Mark. The inquiry claimed in paragraph (4) of the prayer to the particulars of claim was an inquiry “as to damages suffered by the Claimants and each of them”. At that stage no claim was articulated for damages based on any loss suffered by the sub-licensees.[6]Following a trial of liability, in a judgment handed down on 20 April 2018, HHJ Pelling QC substantially found in the respondents’ favour. He directed an inquiry as to damages or an account. On 4 April 2019, the respondents elected for an inquiry. There were substantial delays in the progress of the inquiry, which are not relevant for the purposes of this appeal. The respondents’ points of claim in the inquiry, served on 30 June 2023 and amended on 4 September 2024, sought the recovery of losses made by them and by various, mostly unnamed, sub-licensees, relying on s.30(6) TMA 1994.[7]It is the claim in respect of the losses of the sub-licensees which gives rise to the issue on this appeal. The appellants contend that this is not permitted in circumstances where the sub-licences are not registered, or were not registered at the relevant time.[8]The appellants sought summary judgment on this claim. In a reserved judgment handed down on 9 June 2025 Marcus Smith J dismissed that application. He concluded, first, that the losses suffered by the sub-licensees may, pursuant to s.30(6) TMA 1994, be taken into account in infringement proceedings brought by BV, notwithstanding the lack of registration of the sub-licences. He also held that, to the extent that s.30(6) TMA 1994 conferred protection on a licensee, there is no time limit for registration of the licence, so that if they are registered now, that would enable the licensee to benefit from such protection.[9]The appellants appeal to this court with the permission of the judge in respect of both points. The respondents, with the permission of Arnold LJ granted on 4 August 2025, cross-appeal the judge’s decision to reserve the costs of the application for summary judgment to a subsequent case management conference. Consideration of the cross-appeal has been deferred until after hand-down of this judgment, which addresses the appellants’ appeal.

The statutory context

[10]By s.2(1) TMA 1994 a registered trade mark is a property right, obtained by registration under the Act. The proprietor of a registered trade mark has exclusive rights in the trade mark which are infringed by its use in the UK without his consent: s.9(1) TMA 1994. Those rights have effect from the date of registration, which is the date of filing of the application for registration: s.9(3) TMA 1994.[11]An infringement of a registered trade mark is actionable “by the proprietor of the trade mark”: s.14(1) TMA 1994. By s.14(2), “[i]n an action for infringement all such relief by way of damages, injunctions, accounts or otherwise is available to him as is available in respect of the infringement of any other property right.”[12]A voluntary system of registration of transactions affecting trade marks is provided for by s.25 TMA 1994. This covers, among other things, an assignment, the grant of a licence and the grant of any security interest in respect of a registered trade mark. The reference here (and elsewhere in the Act) to a “licence” includes a sub-licence where the grant of a sub-licence is permitted by the licence: s.28(4) TMA 1994.[13]There are certain limitations on the rights of the licensee of a registered trade mark until the licence is registered, as set out in s.25(3) and s.25(4) TMA 1994. These are of central relevance, and I set them out in full:[14]S.25(3) provides as follows:
“Until an application has been made for registration of the prescribed particulars of a registrable transaction— (a) the transaction is ineffective as against a person acquiring a conflicting interest in or under the registered trade mark in ignorance of it, and (b) a person claiming to be a licensee by virtue of the transaction does not have the protection of section 30 or 31 (rights and remedies of licensee in relation to infringement).”
(emphasis added) (a) the transaction is ineffective as against a person acquiring a conflicting interest in or under the registered trade mark in ignorance of it, and (b) a person claiming to be a licensee by virtue of the transaction does not have the protection of section 30 or 31 (rights and remedies of licensee in relation to infringement).” (emphasis added)[15]In the form relevant to the facts of this case (as amended by the Intellectual Property (Enforcement, etc) Regulations 2006) s.25(4) reads as follows:
“Where a person becomes the proprietor or a licensee of a registered trade mark by virtue of a registrable transaction and the mark is infringed before the prescribed particulars of the transaction are registered, in proceedings for such an infringement, the court shall not award him costs unless— (a) an application for registration of the prescribed particulars of the transaction is made before the end of the period of six months beginning with its date, or (b) the court is satisfied that it was not practicable for such an application to be made before the end of that period and that an application was made as soon as practicable thereafter.” (a) an application for registration of the prescribed particulars of the transaction is made before the end of the period of six months beginning with its date, or (b) the court is satisfied that it was not practicable for such an application to be made before the end of that period and that an application was made as soon as practicable thereafter.”
[16]As originally enacted, s.25(4) provided that the consequences of a failure to apply to register the licence within the six-month period was that the licensee could not claim damages for an infringement of the trade mark that occurred prior to the registration of the licence. The amendment in 2006 was made because of a concern that the provision conflicted with Article 13 of Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (which required member states to ensure that competent judicial authorities ordered an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity to pay damages to the rightsholder).[17]The relevant version of s.30 is the provision as enacted, being that which was in force at the time of the relevant infringements and at the commencement of the action. It provided as follows: “General provisions as to rights of licensees in case of infringement(1) This section has effect with respect to the rights of a licensee in relation to infringement of a registered trade mark. The provisions of this section do not apply where or to the extent that, by virtue of section 31(1) below (exclusive licensee having rights and remedies of assignee), the licensee has a right to bring proceedings in his own name.(2) A licensee is entitled, unless his licence, or any licence through which his interest is derived, provides otherwise, to call on the proprietor of the registered trade mark to take infringement proceedings in respect of any matter which affects his interests.(3) If the proprietor— (a) refuses to do so, or (b) fails to do so within two months after being called upon, the licensee may bring the proceedings in his own name as if he were the proprietor.(4) Where infringement proceedings are brought by a licensee by virtue of this section, the licensee may not, without the leave of the court, proceed with the action unless the proprietor is either joined as a plaintiff or added as a defendant. This does not affect the granting of interlocutory relief on an application by a licensee alone.(5) A proprietor who is added as a defendant as mentioned in subsection (4) shall not be made liable for any costs in the action unless he takes part in the proceedings(6) In infringement proceedings brought by the proprietor of a registered trade mark any loss suffered or likely to be suffered by licensees shall be taken into account; and the court may give such directions as it thinks fit as to the extent to which the plaintiff is to hold the proceeds of any pecuniary remedy on behalf of licensees.

(b) fails to do so within two months after being called upon,

[18]S.30 was amended in 2019 (by the Trade Marks Regulations 2018 (SI 2018/825)). The main differences are that licensees, in general, were now precluded by a new s.30(1A) from bringing proceedings for the infringement of the trade mark unless the proprietor consented, and the provisions of the original s.30(2) and s.30(3) enabling a licensee to call on the proprietor to bring proceedings and to bring proceedings itself if the proprietor failed to do so were confined to exclusive licensees. In addition, a new subsection, (6A), was added:
“Where the proprietor of a registered trade mark brings infringement proceedings, a licensee who has suffered loss is entitled to intervene in the proceedings for the purpose of obtaining compensation for that loss.”
[19]S.31 confers additional rights on a sub-set of exclusive licensees, being those where the licence provides that the licensee has the same rights and remedies as the proprietor (“qualifying licensees”). Specifically, it confers on qualifying licensees the right to bring infringement proceedings in their own name, and to do so concurrently with the proprietor, and provides for various matters consequential on those concurrent rights of action.

The judge began his analysis with a succinct description of the rights of a licensor/licensee:

“26. A licence is simply a contract between one person (A, the licensor) and another (B, the licensee), where A permits B to do something which A could otherwise prevent B from doing. The reason why A has this power is because A owns something (an item of property, whether that be land or a chattel or an intellectual property right) from which A can exclude third parties (C). 27. The difference between B and C is that B has a licence to use A’s property, whereas C does not. The nature of A’s rights in regard to their property is that they are in rem: A can bring an action against anyone who infringes their property rights, except for B, who has the benefit of a personal right (a right in personam) against A permitting B to use A’s property in accordance with the terms of the licence between them. 28. The problem with a licence is that B only has rights against A. Should C infringe on A’s proprietary rights, then although it is likely that B will suffer harm, only A can stop C from infringing. The licence between A and B may very well contain obligations on A to ensure that B enjoys the rights granted to them, but this, too, is a matter of contract, giving B further rights as against A going beyond the right simply to use A’s property.”
[21]At §29, he described the outcome as unsatisfactory, because it left the licensee dependent upon the proprietor taking action to protect their interests, and because it risked the creation of a “black hole”, where an actionable wrong was committed by a third party, where the proprietor alone had a right of action, but suffered no loss, and where the licensee suffered loss, but had no claim.[22]Having concluded that the sub-licensees (subject only to s.30(6A)) could not be joined to the proceedings (because s.31 is limited to exclusive licensees), the judge identified s.30(6) as being intended to avoid the “black hole” problem he had identified (see §43).[23]It was the appellants’ case, however, that on the proper construction of s.25(3)(b), registration of the sub-licensees was a pre-condition to recovery by CV or BV of losses sustained by sub-licensees. The judge rejected that construction at §50 to §55, concluding that it is clear from the wording of s.25(3)(b) that the loss of protection applies only to a licensee, and not to the proprietor, whereas the opening words of s.30(6) confer a protection on the proprietor, requiring the court to take into account licensees’ losses so as to avoid the ‘black hole’ when assessing the proprietor’s claim.[24]He found, however, that the second half of s.30(6) did confer protection on the licensee, so was only available to a licensee where there was an application to register. In answer to the suggestion that this might lead to the overcompensation of the proprietor, he observed, first, that the licensee may have personal rights against the proprietor arising from the infringement of the Marks by third parties, and that the subsection only required the licensees’ losses to be taken account of, which was a provision notable for its flexibility: see §55.[25]The judge then turned to the question of late registration. He first concluded that s.25(3) leaves the time-frame for an application to register a licence open-ended (in contrast to s.25(4)(a)). He then held that the protection conferred on licensees by s.30(6) and s.30(6A) could be obtained via a late registration of the licence “because no third-party interests are prejudiced by that application”.

The grounds of appeal

[26]There are two grounds of appeal. The first challenges the judge’s conclusion that the rights conferred by the first half of s.30(6) TMA 1994 are not conferred on a licensee, and are therefore not dependent on registration of the licence. The second ground is that the judge was wrong to find that there is no time-limit within which an application for registration of a licence needs to be made, such that a licensee can, retrospectively, obtain the protection of s.30(6) by registration of the licence after the event.

Ground 1

[27]The approach to statutory construction is well known, and was not in dispute between the parties. A provision is to be interpreted by identifying the meaning which a reasonable legislature as a body would be seeking to convey in using the words under consideration. The words used must be read in the context of the section as a whole, and in the wider context of the relevant group of sections and the statute as a whole. The words chosen by Parliament are the primary source by which meaning is ascertained: see, for example, Cadent Gas v City Fibre [2026] EWCA Civ 46 at §27 to §29 per Miles LJ (with whom Phillips LJ and Popplewell LJ agreed), and the cases there cited.[28]I start with the wording of the two provisions. On the face of it, s.25(3)(b) identifies all of the protections found in s.30 and s.31 as being disapplied until an application is made to register the licence. The words in parentheses at the end of s.25(3)(b) support that view, as they refer to s.30 and s.31 as containing “rights and remedies of licensee in relation to infringement”.

The judge avoided that conclusion by two steps:

[29]first, reading s.25(3)(b) as only applying to such parts of s.30 and s.31 that in fact contained protections for licensees; and, second, construing the first half of s.30(6) as constituting a protection for proprietors, not licensees. There is force in the first step, if it were the case that some part of s.30 or s.31 could properly be construed as not being a protection for licensees. I do not accept, however, that s.30 can be partitioned in that way.[30]As Mr Beltrami KC (who appeared for the appellants) put it, s.30 provides a comprehensive “waterfall” of rights and remedies for licensees. In the version relevant to this case, it envisages two options for protecting the rights of licensees: proceedings brought by the proprietor for the benefit of the licensee, or proceedings brought by the licensee itself. Thus, under s.30(2), the licensee can request the proprietor to bring a claim in respect of any matter which affects its interest. If the proprietor fails to do so, then under s.30(3) the licensee may bring proceedings in its own name as if it was the proprietor. If the proprietor does bring the claim, then s.30(6) ensures that the loss suffered by the licensee shall be taken into account, and may be held by the proprietor on behalf of the licensee.[31]I consider that both options are, for the purposes of s.25(3)(b), protections for the licensee. Indeed, as Mr Beltrami submitted, to read s.30(6) as a protection for the proprietor makes little sense. The only protection the proprietor needs is to ensure that it can sue to recover loss suffered by it arising from infringement of the trade mark. That is wholly catered for by s.14. In some cases, the proprietor may already be able to recover under the general law in respect of losses suffered initially by a licensee, for example where the infringement of the trade mark gave rise to a claim against the proprietor by the licensee for breach of the terms of the licence. The proprietor would not need to rely on s.30(6) to do so, however: such losses would be recoverable as its losses under the general law. This reinforces the view that s.30(6) is all about providing something additional to the existing rights of the proprietor, for the protection of licensees.[32]Moreover, it is difficult (as the judge’s interpretation would require) to differentiate between the two halves of s.30(6). The judge accepted that the second half (enabling directions to be made that all or part of the proceeds are held for the benefit of the licensees) is a protection for licensees. There will only ever be such proceeds, however, by reason of the first half of the subsection. Conversely, the only purpose of the first half of the subsection, as I have already observed, is to enable a proprietor to recover something which it could not do under the general law, namely an amount referable to the losses of third party licensees. I cannot see any rational purpose in that additional right being conferred on proprietors for their own benefit, and without regard to the second half of the subsection. That would create an unprincipled windfall for proprietors. Accordingly, the second half of the subsection is best seen as the procedural mechanism for giving effect to the substantive benefit conferred by the words in the first half of the subsection. The subsection as a whole, therefore, is a protection for licensees.[33]Mr St Quintin, who appeared for the respondents, submitted, in disagreement with the judge to this extent, that the second half of s.30(6) also falls outside the ambit of s.25(3)(b). I understood this to be based on the fact that it provides for a discretion to be exercised, and it is only if the court exercises that discretion to direct that all or part of the proceeds is held for the benefit of licensees that it would be “protective of the licensee”. I reject that submission. The fact that the wording is discretionary does not alter the fact that the provision, giving rise to the exercise of discretion, is one which exists for the protection of licensees.[34]As to s.25(3)(b), Mr St Quintin laid stress on the opening words:
“a person claiming to be a licensee”, pointing out that the present claim is brought, not by licensees, but by proprietors (noting that, so far as BV is concerned, although it is a licensee, it is one that has the benefit of s.31 and is therefore treated as a proprietor for the purpose of s.30: see s.30(7)). That, he said, is significant because s.30(6) applies in infringement proceedings “brought by the proprietor”
. I cannot accept this. The words at the beginning of s.25(3)(b) are clearly not referring to someone claiming a remedy in court. They do not provide any support for the contention that s.25(3)(b) is intended to refer only to those parts of s.30 and s.31 which permit a licensee to bring, or to join into, proceedings.[35]Mr St Quintin objected that the appellants’ case depended on showing that s.30(6) is the consequence of s.30(2), which enables the licensee to call on the proprietor to commence proceedings, whereas s.30(6) applies whether or not the licensee has asked the proprietor to bring proceedings. The point based on the structure of s.30, however, (as I have sought to explain above) is that it envisages two possibilities for the protection of licensees: action by the proprietor, or action taken by the licensee in the absence of the proprietor doing so. The fact that s.30(6) applies whether or not the proprietor has been requested to take action is irrelevant to the conclusion that this demonstrates that s.30, as a whole, is all about protection for licensees. As Arnold LJ pointed out in argument, the fact that s.30(6) applies where the proprietor brings action without being asked to do so by the licensee demonstrates why a licensee needs the protection of the subsection.[36]There was some debate before us as to the legislative purpose of the relevant provisions. Registration of licences is not mandatory. It is the obvious effect of s.25(3) and s.25(4), however, to encourage the registration of licences. We were referred to the White Paper which preceded TMA 1994 entitled “Reform of Trade Marks Law” from September 1990 which, at §4.38, recorded the majority view of the Standing Advisory Committee on Industrial Property that “the recording of licences should be encouraged”. Mr St Quintin suggested that the purpose of the relevant provisions of TMA 1994 was to provide a “nudge” towards registration, but no more, and that where the Act intended there to be a substantive consequence of a failure to register, it did so expressly. That is so, for example, in s.25(3)(a), which makes a licence ineffective against a person claiming a conflicting interest in the registered trade mark until the licence is registered. S.25(4) is also a case where an express consequence (irrecoverability of costs) is set out. I do not find it particularly helpful, in construing the relevant provisions of TMA 1994, to consider how strong, or otherwise, is the intended encouragement to register licences. Mr St Quintin’s submission begs the critical question, namely whether the reference in s.25(3)(b) to the protection of s.30 and s.31 includes s.30(6). If it does, then the Act has expressly set out that the consequence of non-registration is as set out in s.30(6).[37]For the above reasons, which are essentially those advanced by Mr Beltrami for the appellants, I would allow the appeal on ground 1.

Ground 2

[38]The appellants, at least in their arguments advanced at the hearing of the appeal, do not disagree with the judge’s conclusion that there is no time limit, as such, for the registration of a licence.[39]Nor do they dispute that registration of a licence may have retrospective effect, in the sense that once a licence is registered the licensee may take action to recover damages for infringement of the relevant trade mark, notwithstanding that the infringement occurred before the licence was registered. That much is clear from s.25(4), as amended in 2006. Prior to that it prevented a licensee recovering damages or an account of profits in respect of an infringement occurring before the licence was registered. It is implicit in the fact that, following the amendment to the subsection, a licensee is not entitled to its costs of a claim for infringement occurring prior to the registration of the licence, that it is entitled to bring a claim for damages for that infringement.[40]Mr Beltrami accepted that there is no substantive difference – in terms of the consequences of a failure to register the licence – between a case where the licensee itself sues and a case where the proprietor sues to recover losses on behalf of the licensee, so that, once an application is made to register the licence, the licensee has the protection of s.30(6) in proceedings commenced by the proprietor, even though the infringement occurred before the application was made to register the licence.[41]Whether that is right or not (which it is unnecessary to decide for the purpose of this appeal), it does not follow that the respondents are right to contend that – even though an application to register the licence is a pre-condition to the protections in s.30(6) being available to the licensee – the licensee can always avail itself of that protection at any time before the order giving effect to the court’s determination on damages is drawn up.[42]As Mr Beltrami submitted, although no time limit is provided in TMA 1994, the time limits prescribed under the Limitation Acts for the bringing of proceedings still apply. Accordingly, given that an application to register the licence is a pre-condition of the protection in s.30 applying to a licensee, the proprietor or licensee must make such an application before the expiry of the limitation period applicable to the infringement claim if the licensee wants to commence proceedings that will escape being time-barred.[43]In my judgment, the same applies to the protection provided by s.30(6). A claim by a proprietor to recover its own losses is different from a claim by a proprietor to recover losses on behalf of a licensee. The latter claim cannot be made until an application to register the licence is made. Accordingly, if that application is made after the expiry of the limitation period within which to bring a claim for the losses suffered by the licensee, it will be too late for the proprietor to bring that claim.[44]Where the proprietor has already commenced proceedings to recover its own losses then, provided the limitation period has not expired in respect of the claim to recover losses suffered by a licensee, there ought in principle to be no objection to that claim being brought, either by way of amendment of the original action, or the commencement and consolidation of a new action.[45]In this case, the last act of trade mark infringement pleaded by the respondents in the inquiry took place on 30 June 2016. As noted above, the respondents’ points of claim, which first raised a claim to damages on behalf of the sub-licensees, were not served until 30 June 2023. No application to register most of the licences has even now been made and the application to register Harvest’s licence was only made (and accepted by the Registry) in April 2025. A claim for the losses suffered by the sub-licensees as a result of infringements taking place a decade or more ago would therefore appear to be well out of time. I address further below whether it is possible to determine on this appeal that the claim for the losses suffered by each of the sub-licensees is in fact statute barred.[46]Mr St Quintin’s arguments focused on the word until an application has been made to register the licence in s.25(3). He submitted that it is a term that refers to a set of circumstances that will come to an end when the application is made, and that the appellants’ argument depended on reading into the subsection a requirement that those circumstances will not come to an end unless the application is made prior to proceedings being commenced, or prior to an application to amend existing proceedings being made. He submitted that there is no basis for such a requirement being read into the section.[47]Mr St Quintin referred to the contrast with s.25(4), where a time-limit is built into the subsection: the proprietor or licensee is not entitled to recover their costs unless an application to register the licence is made within six months after the date of the licence, or as soon after that as is practicable (if not practicable before).[48]Those submissions mis-characterise the appellants’ case. As I have noted above, it is not suggested that there is any time limit contained within s.25(3), and it is not contested that the protections in s.30 can apply retrospectively. The point is, rather, that a claim can only be brought to recover the losses incurred by a licensee (whether the claimant is the licensee or the proprietor) once an application to register a licence has been made, and that the claim is otherwise subject to the time limits set out in the Limitation Acts. This does not involve reading any words into the section. Mr St Quintin’s arguments do not in my view provide any answer to that point.[49]Finally, Mr St Quintin suggested that the appellants’ argument reintroduces a bar on bringing a claim for damages that was removed by the amendment to s.25(4) in 2006. That is not so. For the reasons already given, nothing in s.25(3) bars – at any time – a claim being brought for losses suffered prior to an application being made to register the licence. It is just that it does not disapply or modify the time limits for commencing proceedings that are imposed by the Limitation Acts.[50]While not critical to my reasoning, I observe that the respondents’ proposition – that the protection in s.30(6) is available to a licensee provided only that it applies to register the licence at any time prior to the court ordering that damages are recoverable – poses significant practical difficulties both for defendants to an infringement claim and to the court. In particular, the respondents’ argument could lead to the scope and potential quantum of the claim remaining at large throughout the proceedings, including – in an extreme case – when the court delivers its judgment. The appellants’ position, on the contrary, promotes transparency and fairness in the litigation process.[51]For the reasons set out above, which again reflect those advanced by Mr Beltrami (which, in fairness to the judge, I note do not appear to have been formulated in this way below), I would allow the appeal on ground 2. That leaves the question whether it is appropriate for this Court also to grant the appellants summary judgment dismissing the claims for damages in respect of losses suffered by the sub-licensees. That depends on whether the claims brought in reliance on s.30(6) to recover the losses suffered by sub-licensees are indeed statute barred.

Are the claims to recover losses suffered by the sub-licensees in fact statute barred?

[52]Mr St Quintin raised the possibility that the cause of action to recover a licensee’s loss does not accrue until it is possible to bring such an action, and since that is not possible until an application is made to register the licence, time does not begin to run until that application is made. The parties were invited to file short written submissions following the hearing on the question of whether the claim for losses suffered by the sub-licensees is statute barred. The appellants’ written submissions cited Coburn v Colledge [1897] 1 QB 702 (CA) and Sevcon Ltd v Lucas CAV Ltd [1986] 1 WLR 462 (HL) in support of the proposition that the requirement in s.25(3)(b) to register a licence before the remedies in s.30 can be sought is procedural only, and does not affect the date of the accrual of the cause of action. That, in my judgment, accurately states the law. In Sevcon v Lucas, the House of Lords held that the cause of action for patent infringement accrues for the purpose of the Limitation Acts when the infringement takes place even though no proceedings may be commenced until after the patent has been granted. The same must apply, as a matter of principle, to the cause of action for trade mark infringement. In light of those authorities, Mr St Quintin rightly does not pursue the point.[53]In their written submissions, the respondents also relied on the fact that they are the only claimants and that their claim was commenced within the limitation period. They contend that they were not required to identify the content of their claim for damages in the original particulars of claim, such that the claim under s.30(6) in respect of the losses suffered by the sub-licensees is not statute barred. I do not accept that argument, for the reason noted at [‎43] above: the claim for losses suffered by a sub-licensee is a separate claim to the claim for losses suffered by the proprietor itself.[54]For these reasons, and on the basis of the arguments that have been advanced by the parties at and following the hearing, I consider that the claims brought in reliance on s.30(6) are indeed statute barred.

Conclusion

[55]Accordingly, I would allow the appeal on both grounds and grant the appellants summary judgment dismissing the claims for damages in respect of losses suffered by the sub-licensees.[56]I agree.[57]I also agree.