Lifestyle Equities CV & Ors v Santa Monica Polo Club Ltd & Ors [2017] EWHC 3578 (Ch)

[2017] EWHC 3578 (Ch)Case No HC-2016-002285
IN THE HIGH COURT OF JUSTICE
Business and property courts of england and wales
Intellectual property list (Ch D)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 21/12/2017
Before
MR RECORDER DOUGLAS CAMPBELL QC(Sitting as a Judge of the High Court)
Between
(1) LIFESTYLE EQUITIES C.VClaimants(2) LIFESTYLE LICENSING B.VClaimant(1) SANTA MONICA POLO CLUB LIMITEDDefendants(2) AZIRE GROUP LIMITEDDefendant(3) CONTINENTAL SHELF 128 LIMITED t/a JUICE CORPORATIONDefendant(4) MR ZUBAIR MUKHTAR ALIDefendant(5) MR KASHIF AHMEDDefendant(7) YOURS CLOTHING LIMITED t/a BAD RHINODefendant(11) HORNBY STREET LIMITED t/a JUICE CORPORATIONDefendant(12) MRS BUSHRA AHMEDDefendant(13) MO & A LIMITED t/a BE JEALOUSDefendant(14) BIG CLOTHING4U LIMITEDDefendant(15) EON CLOTHING LIMITEDDefendant(16) SIZE BASE LIMITEDDefendant
Digital Transcription by Marten Walsh Cherer Ltd.,1 st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com
Michael Edenborough QC and Thomas St Quintin (instructed by Brandsmiths) for ClaimantsMichael Hicks and Nick Zweck (instructed by Pannone Corporate LLP) for Defendants

JUDGMENT Approved

[1]I now have to consider whether it is appropriate to add a proviso to the injunction as follows:
“For the avoidance of doubt, nothing in the foregoing shall refer to the use of the words ‘Santa Monica Polo Club’ alone.”
[2]I am satisfied it is appropriate to include such a proviso. The reasons are rather simple. The claimants did not rely on the words “Santa Monica Polo Club” during the trial. My judgment was made on the basis of the logo, because that is what the claimants wanted me to do. It seems to me to be extremely helpful to point out that this was not considered in the judgment.[3]However, I should say one other thing. It is asserted by the defendants that any claim for trade mark infringement/passing off, based on the Santa Monica Polo Club alone, would be precluded on Henderson v Henderson principles. I do not consider it appropriate to decide that today or even to express any views one way or another. That is a substantial argument which will have to be gone through on some other date.[4]I therefore allow the proviso. That means there is no need for the closing words proposed by the defendant in relation to subparagraph (d), and these can come out. [Further submissions][5]I now have to deal with the first of various points under the heading “Other relief”. This relates to what I would refer to as delivery up and forfeiture, for convenience, although actually the position is rather more complex than that.[6]The competing proposals are set out in the draft before me. The first issue of contention is as regards dates. The second is as to what the order is to apply to. It is accepted that it should apply to clothing, footwear, headwear or packaging therefore. It is also accepted that it should apply to swing tags or advertising or any material other than that which is for purely internal use. I am satisfied with that aspect of the order.[7]The more complicated part of the competing proposals is whether I should order erasure, removal or obliteration, pursuant to section 15(1)(a) of the Trade Marks Act 1994; alternatively under section 15(1)(b), to secure the destruction of the infringing goods, materials or articles in question, which I can order if it is not reasonably practicable for the defendants to erase, etc.[8]The alternative to both of these, pursuant to section 15(2) of the Act, is that I may order that the infringing goods, materials or articles should be delivered up to such person as the court may direct for erasure, removal or obliteration of the sign, or for destruction, as the case may be. However, the triggering condition for that is where an order under subsection (1) is not complied with or it appears to the court likely that such an order would not be complied with.[9]Among the complicating factors is that I have virtually no evidence from the defendant as to what would practically be involved. As the claimants pointed out and this was not disputed by the defendants, we may be talking about £750,000-worth of stock, considering all of the signs collectively at this stage, which may amount to 75,000 items, about one to two truck loads. That is a substantial but not a massive amount of material.[10]The defendants have suggested that it may be possible to cause the offending sign to be erased, removed or obliterated. It seems to me that, so far as embroidered material is concerned, it was almost impossible to see how that could be done. If that turns out to be the correct position, i.e. it is not reasonably practicable for the embroidered signs to be removed, then the next option would be destruction of the infringing goods, material or articles in question.[11]At the moment I have no material before me which suggests that an order under subsection (1) will not be complied with, nor does it appear to be likely that such an order would not be complied with.[12]What I therefore propose to do is this. The defendants shall, by Monday, 15th January 2018, serve on the claimant’s solicitors a witness statement by a proper officer, explaining in detail their proposals as regards erasure, removal or obliteration for any infringing goods, material or articles in their possession. Then, in so far as it is said by them not to be reasonably practicable for the offending sign to be erased, the witness statement must explain why it is not reasonably practicable for the offending sign to be erased. That is the first step of the process.[13]What I would therefore order as a follow-up is that the claimant has 14 days to respond to this. The claimant will, if it sees fit, be able to apply at that stage for an order under subsection 15(2). If the claimant decides not to do so, then the obliteration or erasure as proposed by the defendants shall take place seven days thereafter.[14]So, the timetable is 15th January, which is a Monday, for the defendant's statement, 14 days for the claimant's observations in reply, and then seven days for it actually to be done. Both sides shall have liberty to apply. [Further submissions][15]I now have to deal with the Island Records disclosure, as per paragraphs 8 and 9 of the defendants’ draft. A number of points fall for decision here. The first is how much information should be provided. The claimants requested reasonably extensive information, as set out in (c) to (f) of the draft.[16]I am satisfied that having all that information at this stage would indeed be disproportionate, as the defendants submit. The proportionate order is that on the order originally suggested by Jacob J, as he then was, in Brugger v Medicaid and is as at (a) and (b).[17]I should mention in passing that, although the claimants are content, on the grounds of proportionality, for the date of 3rd August 2010 to appear in the order, they make no concession or admission that that is in fact the proper date to use for purposes of the account or enquiry. They merely make the point that that is proportionate information for the purposes of this particular exercise, the purpose being to enable election between an account or an inquiry.[18]The next point is whether it should be merely D11 that provides this information or all of the retail defendants. I have no doubt it should be all of the retail defendants who provide this information. Because I have significantly cut back the scope of the information which has to be provided, it is much less onerous on the five individual retailer defendants. In any event, this is information to which the claimants are properly entitled and I so order.[19]So far as paragraph 9 is concerned, it does seem to me that the two sentences in that paragraph are a recipe for further dispute, and I agree with the defendants that they should be omitted. With that deletion, the claimants still have liberty to apply on three clear days’ notice if they consider that the information provided by all the defendants is not sufficient to allow the claimants to be able to make a reasonably informed election between an account of profits or an inquiry as to damages. On that basis I am happy to delete the last two sentences of paragraph 9. [Further submissions][20]The first issue on costs is whether the order I should make should be that the defendants shall pay a proportion, yet to be decided, of the claimant's costs of this action, to be subject to detailed assessment on the summary basis if not agreed, or whether it should simply be the 11th defendant. The argument in favour of the latter is that D11 is by far the biggest and most important of the defendants. That raises the question: what about the other defendants – and in particular the retailer defendants?[21]The defendants' proposal for those defendants is as follows. I should order that the issue of whether any of the other defendants should also be liable to the claimants for some or all of the costs ordered to be paid by the 11th defendant, and, if so, the amount of such costs, shall be determined at the trial on liability of the defendants.[22]I should say that in general terms I am not attracted by the idea of leaving issues of costs to be determined on another day. I recognise the force of the submission. The force of the submission is that if I make an order that the defendants shall pay the claimant's costs of this action, and I do not distinguish between them, then, in theory at least, they say, there is a possibility that the retailer defendants may find themselves liable for the whole amount.[23]However, as Mr. Edenborough says for the claimants, the risk of this outcome is something that the retail claimants could have avoided. They elected to join this fight, and they stood shoulder to shoulder with D11 with whom they were jointly represented. It also seems to me that, if, as Mr. Hicks has stated on behalf of the 11th defendant in open court, the 11th defendant is willing to pay the claimant's costs and thereby shoulder the burden of the individual retailers, that is an undertaking which the 11th defendant could equally give to the other retailer defendants. It can make the position clear and, if necessary, offer undertakings to that effect.[24]What I am concerned about is that, if I go along with the proposals suggested by the defendants, there is a possibility that D11 may not be good for the money at the end of the day, and then the individual retailers may raise the argument that they will only be liable for a very small amount of the claimant’s costs. Therefore, because of the combination of these arguments, the claimant does not recover its costs. I make no findings or express any view about whether this is likely to happen, but it does seem to me there is a risk that it may happen. Moreover, it is a risk that can easily be avoided.[25]For these reasons and taking all these facts into account, the order I will make is that the defendants, making no distinction between them, shall pay whatever proportion of the claimant's costs I subsequently deem is appropriate, and if D11 wishes to give the undertakings and reassurances to the other individual retailers as it was purporting to give to the court, there should be no problem in practice. That is therefore the order I make. [Further submissions][26]I now have to deal with the overall costs of this action. It is accepted that the claimants are the overall winners and therefore they should in principle have their costs. The dispute is as to the extent of what, if any, deduction should be made.[27]My attention is drawn, as is entirely proper, to Part 44.2 of the Civil Procedure Rules, which reminds me that the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order.[28]I am satisfied this case is appropriate for an issue-based order. The issues on which the claimants lost were largely independent of the trade mark issues on which they won, and there is no reason given as to why the issue-based approach would be inappropriate.[29]That would lead me to make an order under 44.2(6)(f), i.e. costs relating only to the said part of the proceedings, but as paragraph 44.2(7) says:
“Before the court considers making an order under paragraph 6(f), it will consider whether it is practicable to make an order under paragraph 6(a) or (c) instead.”
[30]Paragraph 6(a) refers to a proportion of another party's costs, and I could, for instance, award a percentage discount of costs.[31]The case law on this, at least in intellectual property law cases, is well established. I have to consider who the overall winner is. As I have already said, that is the claimant. Secondly, I have to decide whether the claimant should be deprived of their costs of the issues on which they failed. Thirdly, I have to decide whether the losing party overall, i.e. the defendants, should in fact get their costs of these issues.[32]The cases establish that one only goes to the third step, the so-called double discount, in cases which are out of the normal run. In my judgment, this is not out of the normal run and I refuse to make what is called a double discount.[33]However, the question then is: how much discount is appropriate to make? I have been presented with figures prepared by the defendants, in particular focusing on two things. The first is, as set out in table 1, an analysis of time spent at trial of these issues. The figures themselves are not actually disputed in the sense it is suggested that they do not correctly reflect the amount of court time spent. This comes to a figure of 5%. As against that, the claimants point out that a large part of this figure is due to Mr. Ahmed's unwillingness to answer questions on day two.[34]The second table given here, table 2, might be a more accurate reflection. It analyses the parties’ skeleton arguments on the issues, where the units are paragraphs. That comes out at about 9% to 10%.[35]That is not the end of the matter because I am required to bear in mind the parties' conduct. It seems to me that aspects of both sides' conduct could, in fact, be criticised. In particular, the defendants point out that the contract claims were somewhat speculative, and, in particular, as regards procuring breach of contract, the answer to that was pointed out at a very early stage and yet the claimants pursued it regardless.[36]As against that, the claimants stress that the defendants, and in particular Mr. Ahmed, were notably unhelpful, and part of the reason why so much time was spent on these issues was due to Mr. Ahmed's unhelpfulness.[37]It does seem to me that my own impression, which may of course be imperfect because I only saw what happened at trial, is that the figures given in table 2 are broadly accurate and that about 9% to 10% of time spent at trial was on this. I bear in mind that time spent at trial may be an imperfect guide to the amount of time spent overall, as the claimant has rightly pointed out, but, if I stand back and form my own impression, it seems to me that the proper order is to award a 10% discount. It therefore follows that the defendants will pay 90% of the claimants’ costs of this action insofar as not already dealt with, to be the subject of detailed assessment on the standard basis if not agreed. There is also a separate pre-existing costs order by Master Teverson, which will be assessed on a detailed assessment as well. [Further submissions][38]I now have to deal with the amount of interim payment. The test I have to apply under Part 44.2(8) is that, where the court orders a party to pay costs subject to detailed assessment, as I have done, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.[39]I have been shown the judgment of Birss J in the Victoria's Secret case, in which he considered how the orders for interim payment should apply in relation to cases where a costs budget had been agreed. In that case, the judge felt it appropriate to order an interim payment in the amount of 90% of the sums set out in the costs budget. That, of course, would have been a fact-specific decision.[40]So far as the costs budget of the claimants is concerned here, the grand total figure is £430,285. I am also told by the claimants that, although this of course relates to the accumulation of individual steps, the amount that was actually expended exceeds this by several tens of thousands, and one can therefore be reasonably confident that the amounts have been more or less spent in line with the budgets for each individual step.[41]The defendants propose that I should draw a distinction between incurred costs and costs to be incurred, and, in particular, bear in mind that the incurred costs, as at the date of 30th May 2017, were just over £150,000, whereas the costs to be incurred at that date were £280,152. The reason for drawing the distinction is that, as at that date, the incurred costs were not subject to any cost budgeting because they had already been incurred. They also include costs of claims of parties against whom the claimants had already settled and also costs incurred in relation to issues of joint tortfeasorship (which I have not decided). It seems to me, as a matter of logic, that the defendants are right. Therefore, I have to make some sort of discount for that.[42]The claimants are not minded to dispute the logic. They disputed merely the amount of quantum and how much was involved in these costs.[43]The practical decision I have to make, so far as the incurred costs are concerned, is what multiplication factors I should apply to this. It is not disputed that, given my overall judgment, the defendants should pay 90% of the claimant's costs. The numbers are £150,000 and £280,000 -- I will omit the small figures for present purposes -- and should be multiplied by 90% to get a starting point.[44]The issue then is what further factor do I multiply them by to take into account the uncertainties of assessment. I bear in mind that the purpose of this exercise is not to perform a detailed assessment or indeed to perform a summary assessment. It is merely to identify what is a reasonable sum to pay on account.[45]The competing factors for the further multiplication factors to be applied to item 2 -- incurred costs -- are 90%, as the claimants would argue, and 50% as the defendants would say. I find it very difficult to decide which of these figures is more accurate. I can be fairly confident that the 90% figure is unlikely to be correct, but also it seems to me that the 50% figure is a bit on the low side. The further multiplication factor I order is 60%, so the sum of £150,000 will be multiplied by 90% and then by 60%.[46]So far as the sums to be incurred are concerned, again it is not disputed that a figure of £280,000 must be multiplied by 90%, and the question is whether that should be multiplied by a further 90%, as the claimants say, or 80%, as the defendants say. I propose simply to split this difference, which in fact gives the same figure as was given by the claimants in their evidence. I am left with a figure of £280,000 times 90%, which will be multiplied by a further factor of 85%.[47]So far as time for payment is concerned, I reminded both sides that the judgment interest rate will apply to this sum at the moment at 8%. That is something that is set by statute, which I have no power to alter. The rate has been 8% for many years. It is much higher than any commercial rate of interest; therefore, it is in the interests of the paying party to pay it off quickly. On the other hand, as the claimants have outlined, these are substantial sums, and I entirely accept that 14 days would not be appropriate. What I therefore propose to do is to order that the sum shall be paid over six months, in equal instalments, the first payment to be made on 1st January 2018. The defendants, of course, do have liberty to make increased payments so as to make the necessary payments before the expiring of the six months, and by doing so they will save themselves a considerable rate of interest. That, therefore, is the order I make on costs. [Further submissions][48]I now have an application, which originally had two limbs but, in fact, is now reduced to just one, both relating to interim payment on account of the financial remedy to which the claimants are entitled. Originally, the claimant's proposal was that the liability defendants shall, by 4pm on 4th January 2018, make an interim payment to the claimants on account of the financial remedy to which the claimants are entitled in the sum of £500,000. That is no longer pursued.[49]However, the second part of this is pursued. It is an order that the liability defendants shall, by 4pm on 4th January 2018, execute and perfect a lien in favour of the claimants over assets in the sum of £500,000, and provide by the same date and time independent, credible third-party evidence as to the value of those assets.[50]As will be seen, this is a somewhat unusual application. It is a hybrid between making an application for interim payment and a full-blown freezing injunction (or Mareva injunction, as it was formerly called). However, there are a number of problems with this.[51]First of all, as the defendants say, in order to get anywhere, the claimants have to establish their entitlement to interim payments. There are rules that apply to this of a mandatory nature, set out in Part 25.6. I refer to subparagraph (3), which says:
“A copy of an application notice for an order for an interim payment must — (a) be served at least 14 days before the hearing of the application; and (b) be supported by evidence.”
[52]That procedure was not followed in this case. I was told by the defendants, without objection from the claimants, that they only received the draft order by which it was brought to their attention that any form of order of this nature was being sought today, on Monday of this week. The evidence in support only came on Tuesday of this week, which is about 48 hours ago. The defendants have pointed out that they do not accept the correct figure is £500,000. They draw my attention to number of uncertainties in this, including the fact that the claimants’ own royalty rates have not been disclosed.[53]The claimant's reply to this is, essentially, that I have heard their side of the story and I should therefore make the order sought.[54]It seems to me that this is far too premature. This is a substantial application which needs to be made on proper notice. I would suggest that, unless any reason can be given as to why the procedure set out at 25.6(3) should not be followed, which, as I have said, appears to be mandatory, then that procedure should be followed. Thus, if the claimants wish to pursue an application for an interim payment, they must follow the procedures set out there and serve an application notice at least 14 days in advance.[55]I am not satisfied, on the material that I currently have seen, that there is an immediate risk of dissipation. I can see why the claimants believe that to be the position. For instance they have drawn my attention to what they claim to be heavily discounted sales of infringing goods from the defendant’s website, and they have reminded me of matters raised at trial which were said to go to Mr Ahmed’s credibility. It may be that the next few days will show whether the claimant's suspicions are correct or not, but I have no doubt that it is too early to make this order, and I therefore refuse to do so. [Further submissions][56]The next topic is whether I should make a publicity order, and, if so, whether in the terms proposed by the claimants or the defendants. The background to these is, as is well known, set out in Samsung v Apple [2013] FSR 9, by Sir Robin Jacob, where he says:
“…I am far from saying that publicity orders of this sort should be the norm. On the contrary I rather think the court should be satisfied that such an order is desirable before an order is made - otherwise disputes about publicity orders are apt to take a life on of their own as ancillary satellite disputes. They should normally only be made, in the case of a successful intellectual property owner, where they serve one of the two purposes set out in art. 27 of the Enforcement Directive…”
[57]As set out in recital 27, and not article 27, of the Enforcement Directive 2004/48/EC are as follows:
“27. To act as a supplementary deterrent to future infringers and to contribute to the awareness of the public at large, it is useful to publicise decisions in intellectual property infringement cases.”
[58]One of the unusual factors about this case is that a large number of retailers have already been brought into it, thereby making up a large number of defendants. It does not seem to me that there are likely to be many future infringers at least of this type, and with respect to the mark complained of, who are still out there. That leaves the question whether, of course, there are other types of infringers who may be out there, using the same or similar mark, and whether it may act as a supplementary deterrent to them if I were to order that the liability defendants in this action have to publish a notice for one or two months, or some other period, on their own website.[59]I am not satisfied that this is a case where it is appropriate to make such an order. It seems to me that, so far as publicising my judgment is concerned, the claimants will be able to do it as much as they see fit. I will not say that it requires an exceptional case for such an order, but it is at least somewhat unusual cases where an order is made: see Samsung. As I have already seen from the material in this case, it does seem to me that the disputes about the publicity order are already taking on a life of their own as ancillary disputes (eg in so far as what percentage of the total area of the web page should be viewable, and so on).[60]For these reasons I reject this application. There will be no publicity order. [Further submissions][61]I now have to consider an application for permission to appeal, in accordance with Part 52.6:
“… permission to appeal may be given only where – (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard.”
[62]Argument was directed solely on the first of these -- in other words, a real prospect of success.[63]Permission to appeal is sought in two respects; first, with regard to the main judgment and to my findings in relation to section 10(2), section 10(3) and also passing off. A separate application for permission to appeal is made in relation to an order which I made earlier this morning about costs in relation to the retailer defendants.[64]I will deal with the second point first. It only goes to a question of costs, which is within my discretion in any event. It is suggested by the defendant that it raises a point of principle. I do agree: it does involve a point of principle. Where multiple defendants are involved that have different roles within a particular case and the costs attributable to each of them might be different, to what extent is it just to make the order as a matter of principle? However, as a matter of fact, D11 repeatedly made it clear, during submissions, that it intended to shoulder the burden of all the other defendants. In fact, D11 expressly asked that an order be made that all the claimant's costs obligations be landed on D11's shoulders' alone. Therefore, it seems to me that there is no practical purpose in the appeal because if D11’s statements to the court are to be taken at face value - and there is no reason why they should not be taken at face value -- there is no practical purpose in this appeal because, as D11 has repeatedly made clear, it is going to shoulder the burden of the other defendants.[65]There is also some substance, in my judgment, in the claimant’s submission that the retailer defendants could have avoided the litigation but chose not to do so. They chose to stand shoulder to shoulder with D11, and, having made that decision, it is difficult then to turn round after the result goes against them and say that they should be treated differently.[66]For those reasons I do not consider that there is a real prospect of success in relation to the costs appeal and I refuse permission in that respect.[67]So far as the main judgment is concerned, this can be divided into my decision on section 10(2) and passing off, on the one hand, and on section 10(3) on the other. So far as my judgment on section 10(2) is concerned and passing off, it seems to me that the Court of Appeal is being asked to have a second go on the same facts, there being no identified error of law. To err is human, and I do not pretend to be perfect, but where I made a value judgment, as judges are required to do on the basis of facts which do not appear to be disputed, on the basis of a legal approach which does not appear to be disputed, and in relation to an approach of which no specific criticism is made, it seems to me that the appeal so far as section 10(2) and passing off does not have any real prospect of success.[68]So far as section 10(3) is concerned, the two main points made by way of oral submissions, and I should say they were not included in any written grounds of appeal, are as follows. The first is an argument that the claimant's reputation was insufficient and was bumping along the bottom of the sort of reputation which might have given rise to a successful case under section 10(3). That will have come as news to the successful claimant in Glee, which was a very much smaller organisation but nevertheless succeeded both at first instance and on appeal, despite having a turnover of £1 million a year or so. In any event, that does not appear to me to be an error of law. It is merely a criticism of my assessment of the facts.[69]The other criticism which is made was whether it was right, when considering the reputation of the mark, to take other goods, namely, goods for which the mark was not itself registered, into account. It does not make a difference to my conclusion, as I set out in my judgment. Therefore, even if this is correct as a matter of law, it makes no difference on the facts.[70]Finally, there was one other suggestion that, so far as the 3-horse sign was concerned, if it had stood alone, and if the context of the previous use could have been ignored, it might not have infringed. In my judgment, that is not a correct approach either. It is quite clear that one has to take the context of the use into account.[71]I therefore refuse permission to appeal. However, it will of course be possible for the defendants to make an application to the Court of Appeal for permission to appeal against either or both of these points. [Further submissions][72]I finally have to deal with the question of whether there should be a stay of the injunction which I have ordered pending disposal of an application to the Court of Appeal for permission to appeal since I refused permission myself.[73]The principles applicable to a stay were considered by Arnold J in Red Bull v Sun Mark [2012] EWHC 2046, and, more recently, by Floyd LJ in Novartis v Hospira [2013] EWCA 583, [2014] RPC 3 at 41. The general principles to be applied in such circumstances depend on the balance of convenience, and I have to bear in mind that I “should endeavour to arrange matters so that the Court of Appeal is best able to do justice to the parties once the appeal has been heard”. It is not disputed that that was the approach I should apply as a matter of principle.[74]Here, in support of the application for a stay, the first point made is that the stay is only sought in relation to the 3-horse sign. No application for a stay is sought in relation to the 1 or 2-horse sign. The reason for seeking a stay in relation to the 3-horse sign is that that is a sign which the defendants introduced in September 2016 in response to these proceedings and which, as I understand it, is the majority of or nearly all of their current trade.[75]The first point made in support of the application for a stay is lack of urgency. It is pointed out, as I have just said, that this 3-horse sign was introduced in September 2016. It would have been open to the claimants to seek interim relief at any stage, but they have not done so. They only made the applications they have made today in response to winning a final judgment. They were entitled to take that attitude, and I understand why they have taken that attitude, but it is difficult to reconcile that sequence of events with the suggestion that there is any particular urgency at the moment.[76]In support of the allegation that there is urgency at the moment, the claimants did adduce some evidence showing evidence of discounting on the defendants’ website. However, that evidence only establishes discounting. It does not establish that which the claimants alleged, which was that their products were being dumped. In any event, the idea of a discount happening at Christmas is of itself no cause for suspicion.[77]It was also said that there was no likelihood of confusion in relation to the 3-horse sign, which is correct. I did not make such a finding. However, as against that, I have made a finding by virtue of section 10(3) that the use of it causes damage to the claimants’ mark.[78]It does seem to me that there are factors pointing both ways in this. I take on board the defendants’ argument that, once they have been precluded from using the 3-horse sign, it will be commercially very difficult to re-establish themselves if and when the Court of Appeal grants permission.[79]I also bear in mind the claimants’ point that, on my findings, they are suffering unquantifiable damage as well. So, I cannot possibly arrive at a solution which would satisfy both sides.[80]It does seem to me that the two key factors on which I particularly rely are, first, that this is something that has been going on since September 2016. It does seem to me that there is force in the defendants’ complaint that there is no real urgency about this. When I couple with this the fact that the status quo does not appear to have changed in any way since September 2016, then it is a case where a stay could properly have been granted.[81]It also seems to me that, since I have refused permission, refusing a stay pending an application to the Court of Appeal would be the end of the line. Once I do that it would, as the defendants say, be very difficult to re-establish their brands. So, in commercial terms, if I refuse a stay, there is a risk of effectively prejudging the appeal, which is something that I do not intend to do.[82]As I say, I find this a difficult decision and the arguments are finely balanced, but I am narrowly persuaded in favour of a stay as regards the 3-horse sign pending the outcome of an application to the Court of Appeal for permission. [Further submissions] - - - - - -