15 October 2005

Tokyo Project: Another Kitchin Judgment

My heart sank when I saw GMG Radio Holdings Ltd and others v Tokyo Project Ltd another [2005] EWHC 2188 (Ch) (14 Oct 2005) immediately after I had posted my note on Love & Care in case I had been too gushing but I don't think I was. This is also an exercise of discretion - in this case whether or not to grant an interim injunction in a claim for passing off.

The judgment seems to suggest that the indicia upon which the claim was based was the general look of a night club which had been designed by an artist who had left the claimant to join the defendant company. Perhaps not surprisingly, he had designed the defendant's club in similar style. The application to restrain the defendants had come on just before they were to start work on preparations for their launch. Any delay in those preparations was likely to put them to considerable inconvenience and expense.

The judge refused the application partly because he could see considerable difficulty in running the claim to trial. Though the case does not appear to have been mentioned My Kinda Town v Soll [1983] RPC 407 sprang to my mind. But he also considered the relative risks of injustice in reaching his decision on the merits of the claim.

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