“I note the Opponent’s points as to a pattern of behaviour by companies under Mr Gleissner’s control making it highly improbable that the Applicant had a bona fide intention to use the mark. Although the pattern of behaviour is well-evidenced, it cannot of itself sustain a claim of bad faith for any and all applications by Mr Gleissner or companies under his control. However, when taken in the context of this particular Application, where the Applicant’s mark involves the distinctive name of an exceptionally well-known businessman and public figure (being Donald Trump Jr), and when taken with the further allegations of a motivation on the part of the Applicant to interfere with the legitimate interests of the Opponent in the TRUMP mark, then I find the combination easily overcomes the presumption of good faith and founds a prima facie basis for bad faith. Yet the Applicant offered no evidence or alternative account to counter the clear allegations, indeed nor do the Applicant's submissions of5 December 2017 even deny them.”
“The key questions for determination by the Hearing Officer were: (1) what, in concrete terms, was the objective that CKL had been accused of pursuing? (2) was that an objective for the purposes of which the contested application could not properly be filed? (3) was it established that the contested application was filed in pursuit of that objective? The first question serves to ensure procedural fairness and clarity of analysis. The second question requires the decision taker to apply a moral standard which, in the absence of any direct ruling on the point from the CJEU, is taken to condemn not only dishonesty but also ‘some dealings which fall short of the standards of acceptable commercial behaviour observed by reasonable and experienced men in the particular area being examined’: see Gromax Plasticulture Ltd v. Don & Low Nonwovens Ltd[1999] RPC 367 at 379 (Lindsay J). The third question requires the decision taker to give effect to the principle that innocence must be presumed in the absence of evidence sufficient to show that the applicant has acted improperly as alleged.”
“In the context of the current case, I find that with regard to the first question, the Opponent has set out its accusations of the Applicant in very clear and concrete terms, ensuring procedural fairness and clarity of analysis. The second question, entails applying the principles of law summarised in Red Bull GmbH v Sun Mark Ltd and the third question involves drawing rational inferences from proven facts without allowing the assessment to degenerate into an exercise in speculation. As the Appointed Person noted in Alexander, the CJEU has confirmed that there must be an overall assessment which takes into account all factors relevant to the particular case. As part of that assessment, it is necessary to consider the intention of the Applicant at the time when the Application was filed, with intention being regarded as a subjective factor to be determined by reference to the objective circumstances of the particular case.”
“I must consider what the Applicant knew about the matters in question on30 October 2016 . Although the Applicant has offered little by way of response to the bad faith allegations, I note that elsewhere in its counterstatement it exclusively attributes dictionary definitions to the word Trump. I consider it disingenuous to deny that there would be widespread public awareness of the surname significance of the word. I accept the Opponent’s submission that the Applicant cannot have failed to be aware of the international reputation of the Trump trade mark...”
“…I am satisfied that the Application forms part of a series of abusive registrations made by Mr Gleissner under the guise of one of his companies to seek protection over [a] famous thirdparty marks (as indicated in the evidence from Mr Morgan). While motives are not certain, I find that it [is] unlikely that there was an intention by the Applicant to use the mark as a trade mark in trade – no such intention having been supported by evidence, notwithstanding that Mr Gleissner is known to have a professional connection to television production under other names.”
“I find that the Applicant has acted below the standards of acceptable commercial behaviour judged by ordinary standards of honest people,and the Application is accordingly refused for bad faith.”
“(iv) In the case of a multifactorial assessment or evaluation, the Appointed Person should show a real reluctance, but not the very highest degree of reluctance, to interfere in the absence of a distinct and material error of principle. Special caution is required before overturning such decisions. In particular, where an Appointed Person has doubts as to whether the Registrar was right, he or she should consider with particular care whether the decision really was wrong or whether it is just not one which the appellate court would have made in a situation where reasonable people may differ as to the outcome of such a multifactorial evaluation (REEF, BUD, Fine & Country and others). (v) Situations where the Registrar's decision will be treated as wrong encompass those in which a decision is (a) unsupportable, (b) simply wrong (c) where the view expressed by the Registrar is one about which the Appointed Person is doubtful but, on balance, concludes was wrong. It is not necessary for the degree of error to be 'clearly' or 'plainly' wrong to warrant appellate interference but mere doubt about the decision will not suffice. However, in the case of a doubtful decision, if and only if, after anxious consideration, the Appointed Person adheres to his or her view that the Registrar's decision was wrong, should the appeal be allowed (Re: B). (vi) The Appointed Person should not treat a decision as containing an error of principle simply because of a belief that the decision could have been better expressed. Appellate courts should not rush to find misdirections warranting reversal simply because they might have reached a different conclusion on the facts or expressed themselves differently. Moreover, in evaluating the evidence the Appointed Person is entitled to assume, absent good reason to the contrary, that the Registrar has taken all of the evidence into account. (REEF, Henderson and others).”
“3. Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in Director of Public Prosecutions v Kilbourne[1973] AC 729 , 756, “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof… relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable”. 4. That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, enquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current enquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it…”
“5. The second stage of the enquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.”
“…where the issue in a copyright case is whether the similarity between the claimant’s work and the defendant’s work is due to copying or is a coincidence, it is relevant to know that the defendant has produced works which bear a close resemblance to works other than the work in question which are the subject of copyright. Whereas similarity between two works might be mere coincidence in one case, it is unlikely that there could be coincidental similarity in, say, four cases. The probative force of several resemblances together is much better than one alone.”
“Having chosen to file no evidence directed to the specifics of the facts and matters relied on by the opponent, CKL was, in essence, asking the Registrar to say that it had no case to answer.”
“19. As Lewison LJ memorably observed in Fage UK Ltd v Chobani UK Ltd[2014] EWCA Civ 5 ; [2014] E.T.M.R. 26; [2014] F.S.R. 29 at [114], the trial is not a dress rehearsal: it is the first and last night of the show. This emphasises the need to adduce all relevant evidence at the first hearing, rather than to attempt to adduce further evidence on appeal. Once the last night of the show has finished, the audience are unlikely to be interested in additions to the script.”
“i) the same principles apply in trade mark appeals as in any other appeal underCPR Part 52 . However, given the nature of such appeals, additional factors may be relevant; ii) the Ladd v Marshall factors are basic to the exercise of the discretion, which are to be applied in the light of the overriding objective; iii) it is useful to have regard to the Hunt-Wesson factors; iv) relevant factors will vary, depending on the circumstances of each case. Neither the Ladd v Marshall factors nor the Hunt- Wesson factors are to be regarded as a straightjacket; v) the admission of fresh evidence on appeal is the exception and not the rule; vi) the Gucci decision does not establish that the Court or the Appointed Person should exercise a broad remedial discretion to admit fresh evidence on appeal so as to enable the appellant to re-open proceedings in the Registry; and vii) where the admission of fresh evidence on appeal would require that the case be remitted for a rehearing at first instance, the interests of the parties and of the public in fostering finality in litigation are particularly significant and may tip the balance against the admission of such evidence.”
“No defence of parody or satire is provided by the 1994 Act but it seems likely that, if the use complained of is truly parodic or satirical, then this is a matter which may be taken into account by the court in determining whether the use complained of is “without due cause.”