“Cornucopia Events™ is part of The Cornucopia Group™ which is operated by Cornucopia Entertainment Limited.”
“Headquartered in London, the Cornucopia Group is an award winning and revolutionary, international full service entertainment and events conglomerate, widely considered to be the number one event, hospitality and entertainment agency in the world. … we are proud to be the world’s largest provider of exclusive access to invitation only events. A£250m global business … the Group comprises three brands that provide event management, wedding planning, concierge, lifestyle, MICE, luxury leisure and event services …”
“4. The Defendants have never sold, issued or supplied tickets or access rights to any events organised or branded by the Claimants, including GQ Men of the Year Awards, GQ Men of the Year Party, Vanity Fair Oscars Party or Vanity Fair Cannes Party. 5. The website references to those events are purely descriptive, providing general information about high-profile invitation-only occasions that form part of the global luxury-events landscape to which clients often aspire. 6. No sales have ever taken place in respect of any GQ or Vanity Fair event. All communications or pages are informational only and are clearly branded as Cornucopia Events.”
“(1) At the first case management conference after those defendants who intend to file and serve a defence have done so, the court will identify the issues and decide whether to make an order in accordance with paragraph 29.1 ofPractice Direction 63 . (2) Save in exceptional circumstances the court will not permit a party to submit material in addition to that ordered under paragraph (1).”
“29.1 At the case management conference referred to in rule 63.23 the court may order any of the following – (1) specific disclosure; … 29.2 The court will make an order under paragraph 29.1 only – (1) in relation to specific and identified issues; and (2) if the court is satisfied that the benefit of the further material in terms of its value in resolving those issues appears likely to justify the cost of producing and dealing with it.”
“The CMC is a particularly important part of IPEC procedure. No material may be filed in the case by way of evidence, disclosure or written submissions unless permission is given by the judge. The first and last opportunity to obtain such permission is likely to be at the CMC. Save in exceptional circumstances the court will not permit a party to submit material in addition to that ordered at the CMC (Part 63 rule 23(2)).”
“At GQ’s Men of the Year party…(people)…convene for our annual party… Last year in Los Angeles, GQ celebrated our 28th annual Men of the Year issue.”
“The GQ Men Of The Year Awards in association with Hugo Boss will return for its 24th year. Coming together under one roof, the night promises to be one of the most glamorous events on the calendar …”
“Ticket Package • Champagne and canape reception • 3 course dinner • Awards presentation • Official After Party Individual tickets£5,999 Tables£55,000 (10 person capacity)”
“Cornucopia is able to offer tickets to this amazing star-studded party that takes place during the Cannes Film Festival. Tickets Available Ticket:£15000 per person All prices are per person and subject to VAT For more information email CannesVanityFair@cornucopia-events.co.uk or call Mini Vohra and the Cornucopia Events™ team on +44 (0)871 288 3965 or +44 (0)7863 240 513”
“All GQ Men of the Year Lost Angeles tickets start from£4999 GBP plus VAT each for members and£5999 GBP plus VAT for non-members. Is that within budget? If it is, so that we can start to allocate invitations, and as we need a member profile on each client, please provide the following info: 1. Full name 2. Address 3. Contact number 4. Year of birth 5. Occupation … 6. Annual income (relevant for your member profile when we submit your name for an invitation … We can then send you details of this invitation only event. ... As a reminder, the Cornucopia Group is one of the World’s leading event services companies and is also the world’s largest provider of exclusive access to invitation-only events…”
“Celebs pay attention: Euro party broker selling tickets to Vanity Fair's Cannes party for$18,786 ”
“(1) An EU trade mark has a reputation within the meaning of art.9(2)(c) if it was known to a significant part of the relevant public at the relevant date. (2) The relevant public are those concerned by the products or services covered by the trade mark. (3) The relevant date is the date on which the defendant first started to use the accused sign. (4) From a geographical perspective, the trade mark must have been known in a substantial part of the EU at the relevant date. (5) There is no fixed percentage threshold which can be used to assess what constitutes a significant part of the public; it is proportion rather than absolute numbers that matters. (6) Reputation constitutes a knowledge threshold, to be assessed according to a combination of geographical and economic criteria. (7) All relevant facts are to be taken into consideration when making the assessment, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by undertaking in promoting it. (8) The market for the goods or services in question, and from this the identity of the relevant public, ought to assume a paramount role in the assessment. (9) …”
“The purpose of the exercise … is to assess how the average consumer would select the relevant goods and services and the level of attention which would be paid by the average consumer.”
“the essential function of a trade mark is, in particular, to guarantee the identity of the origin of the goods or services in relation to which it is used. In more colloquial terms, it is a badge of origin and its purpose is to permit the consumer, without any possibility of confusion, to distinguish the goods or services of one undertaking from those of another. At least in general, it can only fulfil that purpose if its owner uses it.”
“57. Article 7 is intended to reconcile the interests of trade mark protection and those of free movement of goods within the Community by making the further commercialisation of a product bearing a trade mark possible and preventing opposition by the proprietor of the mark (see, to that effect, Parfums Christian Dior, paragraphs 37 and 38). Advertisements relating to car repair and maintenance do not affect further commercialisation of the goods in question. 58. Nonetheless, so far as those advertisements are concerned, it is still necessary to consider whether use of the trade mark may be legitimate in the light of the rule laid down in Article 6(1)(c) of the directive, that the proprietor may not prohibit a third party from using the trade mark to indicate the intended purpose of a product or service, in particular as accessories or spare parts, provided that the use is necessary to indicate that purpose and is in accordance with honest practices in industrial or commercial matters. 59. In that regard, as the United Kingdom Government has observed, the use of the trade mark to inform the public that the advertiser repairs and maintains trade marked goods must be held to constitute use indicating the intended purposes of the service within the meaning of Article 6(1)(c). Like the use of a trade mark intended to identify the vehicles which a non-original spare part will fit, the use in question is intended to identify the goods in respect of which the service is provided. 60. Furthermore, the use concerned must be held to be necessary to indicate the intended purpose of the service. It is sufficient to note, as the Advocate General did at point 54 of his Opinion, that if an independent trader carries out the maintenance and repair of BMW cars or is in fact a specialist in that field, that fact cannot in practice be communicated to his customers without using the BMW mark. 61. Lastly, the condition requiring use of the trade mark to be made in accordance with honest practices in industrial or commercial matters must be regarded as constituting in substance the expression of a duty to act fairly in relation to the legitimate interests of the trade mark owner, similar to that imposed on the reseller where he uses another's trade mark to advertise the resale of products covered by that mark.”
“13 In Bayerische Motorenwerke AG v Deenik (C-63/97) EU:C:1999:82; [1999] E.T.M.R. 339, the Court of Justice was asked … whether advertisements such as “Repairs and maintenance of BMWs”, constituted infringement of a BMW trade mark under the corresponding provisions of Directive 89/104 to approximate the laws of the Member States relating to trade marks (“the Directive”). The court answered that question in the following way at [64]: “In the light of the foregoing, the answer to be given to the fourth and fifth questions must be that Articles 5 to 7 of the directive do not entitle the proprietor of a trade mark to prohibit a third party from using the mark for the purpose of informing the public that he carries out the repair and maintenance of goods covered by that trade mark and put on the market under that mark by the proprietor or with his consent, or that he has specialised or is a specialist in the sale or the repair and maintenance of such goods, unless the mark is used in a way that may create the impression that there is a commercial connection between the other undertaking and the trade mark proprietor, and in particular that the reseller’s business is affiliated to the trade mark proprietor’s distribution network or that there is a special relationship between the two undertakings.” 14 By treating arts 5–7 of the Directive as a group, that formulation elides considerations which arise under arts 9 and 12 of the Trade Mark Regulation. Perhaps it was for that reason that neither side took any objection to the way in which the judge formulated TLL’s defence, namely as whether TLL’s use of the signs “did no more than accurately convey the message that TLL was a garage specialising in the maintenance and repair of BMW cars.”
“18 I accept that one cannot start, in a case such as this, from the proposition that any use of the BMW Mark in the course of a business specialising in the repair of BMWs would be an infringement. Use of the mark is necessary and legitimate in order to explain to the public what the business in question actually does. Thus, by way of example, BMW rightly took no objection to the use by TLL of the slogan “The BMW specialists” on the facia of their old premises, separated from the name identifying the business, namely Technosport. Equally, one cannot start from the proposition that the use of BMW in relation to a motor car repairing service can never be an infringement. The mark is, after all, registered for that very service. The distinction is between uses which convey the true message “my business provides a service which repairs BMWs and/or uses genuine BMW spare parts” and those which convey the false message “my repairing service is commercially connected with BMW”
“(a) the likelihood of confusion must be appreciated globally, taking account of all relevant factors; (b) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind, and whose attention varies according to the category of goods or services in question; (c) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details; (d) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements; (e) nevertheless, the overall impression conveyed to the public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components; (f) and beyond the usual case, where the overall impression created by a mark depends heavily on the dominant features of the mark, it is quite possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark; (g) a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa; (h) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it; (i) mere association, in the strict sense that the later mark brings the earlier mark to mind, is not sufficient; (j) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense; and (k) if the association between the marks creates a risk that the public might believe that the respective goods or services come from the same or economically-linked undertakings, there is a likelihood of confusion.”
“…is not a binary question: is the average consumer confused or is the average consumer not confused? Rather, it requires an assessment of whether it is likely that there is, or will be, confusion, applying the standard of perspicacity of the average consumer. It is clear from the case law that this does not mean likely in the sense of more probable than not. Rather, it means sufficiently likely to warrant the court's intervention. The fact that many consumers of whom the average consumer is representative would not be confused does not mean that the question whether there is a likelihood of confusion is to be answered in the negative if a significant number would be confused.”
“134. The law. The principles laid down by the Court of Justice for determining whether the use of a sign is “in accordance with honest practices in industrial or commercial matters” may be summarised as follows. 135. First, the requirement to act in accordance with honest practices in industrial or commercial matters “constitutes in substance the expression of a duty to act fairly in relation to the legitimate interests of the trade mark proprietor… 136. Secondly, the court should “carry out an overall assessment of all the relevant circumstances”, and in particular should assess whether the defendant “can be regarded as unfairly competing with the proprietor of the trade mark”: see Gerolsteiner at [26], Anheuser-Busch at [84] and Céline at [35]. 137. Thirdly, an important factor is whether the use of the sign complained of either gives rise to consumer deception or takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark. If it does, it is unlikely to qualify as being in accordance with honest practices: see Gillette at [49], Anheuser-Busch at [83] and Céline at [34]. 138. Fourthly, a mere likelihood of confusion will not disqualify the use from being in accordance with honest practices if there is a good reason why such a likelihood of confusion should be tolerated: Gerolsteiner at [25]. 139. In applying these principles in a number of cases when sitting at first instance, I found it of assistance to consider the following list of factors which I first set out in Samuel Smith v Lee at [118]: i) whether the defendant knew of the existence of the trade mark, and if not whether it would have been reasonable for it to conduct a search; ii) whether the defendant used the sign complained of in reliance on competent legal advice based on proper instructions; iii) the nature of the use complained of, and in particular the extent to which it is used as a trade mark for the defendant’s goods or services; iv) whether the defendant knew that the trade mark owner objected to the use of the sign complained of, or at least should have appreciated that there was a likelihood that the owner would object; v) whether the defendant knew, or should have appreciated, that there was a likelihood of confusion; vi) whether there has been actual confusion, and if so whether the defendant knew this; vii) whether the trade mark has a reputation, and if so whether the defendant knew this and whether the defendant knew, or at least should have appreciated, that the reputation of the trade mark would be adversely affected; viii) whether the defendant’s use of the sign complained of interferes with the owner’s ability to exploit the trade mark; ix) whether the defendant has a sufficient justification for using the sign complained of; and x) the timing of the complaint from the trade mark owner.” i) whether the defendant knew of the existence of the trade mark, and if not whether it would have been reasonable for it to conduct a search; ii) whether the defendant used the sign complained of in reliance on competent legal advice based on proper instructions; iii) the nature of the use complained of, and in particular the extent to which it is used as a trade mark for the defendant’s goods or services; iv) whether the defendant knew that the trade mark owner objected to the use of the sign complained of, or at least should have appreciated that there was a likelihood that the owner would object; v) whether the defendant knew, or should have appreciated, that there was a likelihood of confusion; vi) whether there has been actual confusion, and if so whether the defendant knew this; vii) whether the trade mark has a reputation, and if so whether the defendant knew this and whether the defendant knew, or at least should have appreciated, that the reputation of the trade mark would be adversely affected; viii) whether the defendant’s use of the sign complained of interferes with the owner’s ability to exploit the trade mark; ix) whether the defendant has a sufficient justification for using the sign complained of; and x) the timing of the complaint from the trade mark owner.”
“(3) A person infringes a registered trade mark if he uses in the course of trade, in relation to goods or services, a sign which— (a) is identical with or similar to the trade mark, where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.”
“39. As regards detriment to the distinctive character of the mark, also referred to as ‘dilution’, ‘whittling away’ or ‘blurring’, such detriment is caused when that mark’s ability to identify the goods or services for which it is registered is weakened, since use of an identical or similar sign by a third party leads to dispersion of the identity and hold upon the public mind of the earlier mark. That is particularly the case when the mark, which at one time aroused immediate association with the goods or services for which it is registered, is no longer capable of doing so (see, to that effect, Intel Corp (C-252/07) [2008] E.C.R. I-8823, para.29). 40. As regards detriment to the repute of the mark, also referred to as ‘tarnishment’ or ‘degradation’, such detriment is caused when the goods or services for which the identical or similar sign is used by the third party may be perceived by the public in such a way that the trade mark’s power of attraction is reduced. The likelihood of such detriment may arise in particular from the fact that the goods or services offered by the third party possess a characteristic or a quality which is liable to have a negative impact on the image of the mark. 41. As regards the concept of ‘taking unfair advantage of the distinctive character or the repute of the trade mark’, also referred to as ‘parasitism’ or ‘free-riding’, that concept relates not to the detriment caused to the mark but to the advantage taken by the third party as a result of the use of the identical or similar sign. It covers, in particular, cases where, by reason of a transfer of the image of the mark or of the characteristics which it projects to the goods identified by the identical or similar sign, there is clear exploitation on the coat-tails of the mark with a reputation. 42. Just one of those three types of injury suffices…”
“48. It is clear both from the wording of the relevant provisions and from the case law of the Court of Justice and General Court interpreting them, in particular L’Oréal v Bellure, that this aspect of the legislation is directed at a particular form of unfair competition. … the defendant’s conduct is most likely to be regarded as unfair where the defendant intends to take advantage of the reputation of the trade mark. Nevertheless, in Jack Wills Ltd v House of Fraser (Stores) Ltd[2014] EWHC 110 (Ch) ,[2014] FSR 39 I concluded at [80] that there was nothing in the case law to preclude the court from holding in an appropriate case that the use of a sign the objective effect of which is to enable the defendant to benefit from the reputation of the trade mark amounts to unfair advantage even if it is not proved that the defendant subjectively intended to exploit that reputation. …”
“55. The elements necessary to reach a finding of passing off are the ‘classical trinity' of that tort as described by Lord Oliver in the Jif Lemon case (Reckitt & Colman Product v Borden[1990] 1 WLR 491 HL,[1990] RPC 341 , HL), namely goodwill or reputation; misrepresentation leading to deception or a likelihood of deception; and damage resulting from the misrepresentation. The burden is on the Claimants to satisfy me of all three limbs. 56. In relation to deception, the court must assess whether "a substantial number" of the Claimants' customers or potential customers are deceived, but it is not necessary to show that all or even most of them are deceived (per Interflora Inc v Marks and Spencer Plc[2012] EWCA Civ 1501 ,[2013] FSR 21 ). 57. The Defendant relies on The National Guild of Removers and Storers Limited v Bee Moved Limited, Nicholas Anthony Burns and Oliver Christopher Robert Sampson[2016] EWHC 3192 (IPEC) in which Douglas Campbell QC sitting as a deputy Judge of the High Court considered "… the difficulties of distinguishing between mere confusion, which is not enough to establish misrepresentation, and deception, which is" … . He concluded that: "The real distinction between the two lies in their causative effect, but is not a complete statement of the position… The more complete statement focuses on whether the conduct complained of is "really likely" to be damaging to the Claimant’s goodwill or divert trade from him. This emphasis on "really likely" echoes Lord Fraser in Advocaat[1980] RPC 31 at p 106 line 3. It is implicit in this test that if the conduct complained of is not "really likely" to be damaging then it will be mere confusion."”
“137. Although procuring a tort and assisting another to commit a tort pursuant to a common design are distinct bases for imposing accessory liability, they must operate consistently with each other and such that the law of accessory liability in tort is coherent. Considerations of principle, authority and analogy with principles of accessory liability in other areas of private law all support the conclusion that knowledge of the essential features of the tort is necessary to justify imposing joint liability on someone who has not actually committed the tort. This is so even where, as in the case of infringement of intellectual property rights, the tort does not itself require such knowledge. … Application to this case 138 In a simple case where, for example, a company offers for sale counterfeit goods, it may be obvious that a director who arranged for the manufacture and sale of the goods must have known the facts which made the company’s acts infringements of the claimant’s trade mark. But the present case is not of this kind. The Santa Monica Polo Club signs used by Hornby Street were different in various ways from Lifestyle’s registered trade marks and there was room for argument and honest difference of opinion about the extent of the similarity and whether it gave rise to a likelihood of confusion or otherwise resulted in infringement. 139 At the first trial the judge made findings about the Ahmeds’ knowledge, which fall well short of finding that they had the knowledge required for accessory liability. The period during which infringements took place ran from 2008 until January 2018 ... The judge made no finding that the Ahmeds were even aware of Lifestyle’s trade marks before March 2014, when Lifestyle sent a letter of complaint about the use of the Santa Monica Polo Club signs. The judge … did not find that the Ahmeds knew, or should have appreciated, that there was a likelihood of confusion… 140 To establish infringement under section 10(3) several matters must be proved. They include the facts: (i) that the claimant’s trade mark has a reputation in the United Kingdom; and (ii) that the use of the sign complained of (a) gives rise to a link between the sign and the claimant’s trade mark in the mind of the average consumer, (b) gives rise to one of the three relevant types of injury specified in section 10(3), and (c) is without due cause …. The judge found infringement involving two relevant types of injury: taking unfair advantage of the distinctive character or the repute of the claimant’s trade mark and causing detriment to its distinctive character. 141 Regarding the Ahmeds’ knowledge of these matters, the judge noted that it was not put to Mr Ahmed in cross-examination, nor was it submitted on behalf of Lifestyle, that the Juice Corporation companies and their directors ever deliberately intended to take advantage of the distinctive character or the repute of Lifestyle’s trade marks... The judge found that the Ahmeds must have known about the reputation of the claimant’s trade mark from at least 2014 (the date of the letter of complaint)... But although the judge raised the question whether the Ahmeds knew, or should have appreciated, that this reputation would be adversely affected by the use of the offending … signs, he made no finding to that effect... And although the judge found that the use of the offending signs was without due cause…, he made no finding that the Ahmeds realised (nor even that they should have realised) this.”