“ ‘Playtech would acquire Uniplay and combine its assets with William Hill's Online offering … There was no reference to particular brands that Uniplay operated; they were not considered important. As we understood the business, part of Uniplay's success came from its ability to move players from one casino to another, so that even if they changed where they were playing, they were still doing business with a Uniplay casino. They used a number of brands …’”
“One way in which online casinos attract customers is through the use of ‘affiliates’, third parties who promote the services of the casino online and provide links through to the casino website, in return for which the casino operator pays the affiliate a fee in proportion to the level of business undertaken by the person referred. Another way in which business is attracted to an online casino is through the use of bonuses and free bets. These (which are promoted by the affiliates as a marketing tool) are offers of ‘free money’ which are made as incentives to sign up a customer or to deposit funds if already a member. Such bonuses generally take the form of an offer to match the funds deposited or, for higher value deposits, to award multiples thereof. Once such a bonus has been paid into the customer’s account it is treated in the same way as the money deposited. However, in order to prevent the customer simply withdrawing the entirety of the funds without placing any bets, bonuses come with strings attached, known as wagering requirements.”
“The personal characteristics of the parties, as opposed to the objective factors with which they were faced, are to be ignored”
“My Lords, this passage is, in my opinion, unsupportable in law or in fact. In law it rests upon the hypothesis that what has to be considered, in measuring the loss a patentee sustains through an infringement, is some bargain struck between some abstract licensor and some abstract licensee uncontaminated by the qualities of the actual actors. But this is not so. The ‘willing licensor’ and ‘willing licensee’ to which reference is often made (and I do not object to it so long as we do not import analogies from other fields) is always the actual licensor and the actual licensee who, one assumes, are each willing to negotiate with the other — they bargain as they are, with their strengths and weaknesses, in the market as it exists. It is one thing (and legitimate) to say of a particular bargain that it was not comparable or made in comparable circumstances with the bargain which the court is endeavouring to assume, so as, for example, to reject as comparable a bargain made in settlement of litigation. It is quite another thing to reject matters (other than any doubt as to the validity of the patent itself) of which either side, or both sides, would necessarily and relevantly take account when seeking agreement”
“i) What the acts of trespass were; ii) What were their purpose and effect in relation to the development of the Yellow Land: and iii) What alternatives did the Defendants have to using the Red Triangle in order to carry out those works”
“On the basis of these findings the court must then assess what payment would have been agreed for the temporary use of the Claimants’ land. It is not of course open to the Defendants as part of this exercise to say that they would (if confronted with a demand for payment) have avoided making any use of the Claimants’ land. The purpose of the assessment is to calculate a sum which compensates the Claimants for the financial benefits which the Defendants actually made from using the Red Triangle. But the alternative possibilities open to the Defendants are of course highly relevant as factors which would have influenced the hypothetical negotiations. Clearly the Defendants would not have been prepared to pay and the Claimants would not have been able to demand a fee which was disproportionate to the actual financial advantages of using the Red Triangle as opposed to postponing the works or creating an alternative access point”
“The judge asked himself, in effect, what would actually have happened if the question of possible trespass had been appreciated by the parties before the erection of the first hoarding, and his answer to this question was that no trespass would in fact have occurred because the hoarding would then have been placed wholly within No.67. But that, with respect to the judge, is to misunderstand the nature of the exercise which the court has to perform in cases of the present type. The starting point is the admitted trespass which took place for nearly five years, and the function of the hypothetical negotiation is to ascertain the value of the benefit of that trespass to a reasonable person in the position of Outdoor or Decaux. As Vos J. said in Stadium Capital Holdings at [69], the value of that benefit is ‘the price which a reasonable person would pay for the right of user, or the sum of money which might reasonably have been demanded as a quid pro quo for permitting the trespass’. For that purpose, it has to be assumed that the hypothetical negotiation would have resulted in an agreement, even if the parties might in fact have refused or been unwilling to agree. It also has to be assumed that the actual trespass which has occurred would in fact take place, because the whole point of the exercise is to reach a reasonable measure of compensation to the claimant for that trespass. This point was made with great clarity by Patten J. in Sinclair v Gavaghan at [17], which the judge cited, but of which he seems to have lost sight when formulating his conclusions”
“The decision in the patent action and the minute of admission in the present case establish beyond question that in selling the ‘Shoe’ brand nails, the respondents infringed the appellants’ rights. The sale of each and all of those nails was unlawful. It appears to be beside the mark to say that the respondents might have arrived at the same result by lawful means, and that, without infringing the appellants’ rights, they might have produced a nail which would have proved an equally dangerous rival of the ‘Globe’ nail”
“Bidding on 32Vegas as an adword resulted in a total of 251 users clicking on the 32Red advertisement, at a cost to 32Red of£884.04 . Of those users, 20 signed up as members of the 32Red site, and 10 of them played for real money, generating a ‘gross win’ of£1,795.44 ”
“In the absence of such provisions (or if it were expected, perhaps based on past behaviour, that a licensee was going to operate outside of such provisions), I would expect the royalty rate to increase (and potentially markedly) to compensate for the greater risk to the licensor of licensing the trade mark to a user, but without certain quality control protections in the licence terms”
“While it would have been very difficult for the Joint Venture to operate the carousel if it had access to none of the [Genuity Marks], the operation of the carousel is unlikely to have been materially affected by the absence of any one brand”
“It is not clear to me that, in an arm’s length transaction, a third party would pay a substantial royalty for the use of the 32Red brand in Spain, in isolation from the other intangible assets that 32Red was expected to provide”
“In the circumstances, we might have been prepared to pay a one-off fee for the convenience of using the name [32Vegas], but that would have been no more than£25,000 to£50,000 . That figure could be arrived at by a notional number of players that might come to 32Vegas from 32Red. It recognises the absence of any evidence of players joining 32Vegas from 32Red in the time the 32Red and 32Vegas marks had been in the market together, and it would have been hard to justify more”
“Is there evidence of a change in economic behaviour brought about by the use of the Vegas signs? … The similarity of their names, and the fact that 32Vegas was always operated as one of a number of linked casinos on the carousel model, lead me to conclude that an average online gambler would have been far readier to switch his allegiance from 32Red to 32Vegas, or to play with 32Vegas in the first place, than he would have been in the absence of such similarity. These are changes in economic behaviour, and I am satisfied on the balance of probabilities that such changes are likely to have occurred to a significant extent”
“Overall, one can say that wherever one looks in the stand-alone casinos or the Genuity casinos or 32Vegas, it does not appear as though the business missed a beat as a result of the re-branding”
“I am interested in the overall impact on the business. That is what, in my view, is relevant to the hypothetical negotiation between businesses, who would be looking at: ‘What will happen to our net revenue? What will happen to our profits?’”