Practice - Anglo Atlantic Media Ltd v Slater and Others

Jane Lambert 

Chancery Division (HH Judge Briggs) Anglo Atlantic Media Ltd v Slater and others [2020] EWHC 710 (Ch) (8 April 2020)

This was an application to strike out proceedings that had been launched by the registered proprietor of the above trade mark against the musician, Rodney Slater, and others who had played together as The Bonzo Dog Doo-Dah Band in apparent retaliation for their application in the Trade Marks Registry to cancel the registration.  The musicians' application was heard by Mr Oliver Morris on behalf of the Registrar on 5 Sept 2019 who delivered his decision declaring the registration invalid on 30 Oct 2019 (see Re Bonzo Dog Doo-Dah Band, Spear and others v Anglo Atlantic Media Ltd, O/664/19 30 Oct 2019).

The former proprietor of the trade mark and the claimant in the retaliatory proceedings was a private company incorporated with limited liability in England and Wales in the name of Anglo Atlantic Media Ltd. Until recently one of its directors was one Robert Kirk Carruthers.  Mr Carruthers is described in the judgment in the strikeout proceedings as "a promoter and manager" who conceived and organized an anniversary concert for the musicians in 2005.  In his first witness statement in the trade mark invalidation proceedings, he said that he worked in the music industry.

The proceedings that the company brought against the musicians were summarized as follows at  paragraph [21]  of the strikeout judgment:

"Conspiracy to injure (the 'First Claim'), Malicious falsehood (the 'Second Claim), statutory misrepresentation (the 'Third Claim') and trademark infringement (the 'Fourth Claim')."

They were issued out of the Queen's Bench Division.  The musicians applied to strike them out.  The strikeout application came on before Mr Justice Freedman who transferred the proceedings to the Intellectual Property List of the Chancery Division.  The application was heard by Chief Insolvency and Companies Court Judge Briggs sitting as a judge of the High Court on 25 Feb 2020.  He delivered his judgment striking out all four causes of action on 8 April 2020 (see  Slater and others v Anglo Atlantic Media Ltd [2020] EWHC 710 (Ch) (8 April 2020)).

In his judgment, Judge Briggs set out the background to the dispute (paragraphs [1] to [6]), the evidence before him which seems to have consisted mainly of three very long and tendentious witness statements from Mr Carruthers (paragraphs [7] to [11], the proceedings in the Trade Marks Registry (paragraphs [12] to [20]), the proceedings that were the subject of the application (paragraphs [21] to [24]), the particulars of claim (paragraphs [25] to [37]), CPR 3.4 (2)) and the relevant case law (paragraphs [38] to [41]). the cases on immunity from suit (paragraphs [42] to [45]), the cases on issue estoppel, cause of action estoppel and abuse of process (paragraphs [46] [62]).his analysis of the particulars of claim (paragraphs [63] to [70]). a request for information by the musicians' solicitors as to whether the claimant company was solvent which upset Mr Carruthers (paragraphs [71] to [73]) and his conclusion (paragraphs [74] to [77]).

The judge's reasons for striking out the proceedings are set out in paragraphs [74] to [76] of his judgment:

"[74] The causes of action pleaded are incomplete, prolix, offend the principle of absolute privilege and many of the facts underlying the causes of action have been decided by the Registrar giving rise to issue estoppel. The witness evidence provided to defend this application is disparate, and often contains inadmissible opinion evidence, bare assertion and irrelevancies.
[75] The March 2019 POC and April 2019 POC plead the four claims. The facts pleaded to support conspiracy to injure go to the crux of the decision of the Registrar that the Band carried on a business in common with a view of profit, and held the goodwill of its name. The applications for cancellation and for a declaration of invalidity do not provide grounds to found a claim of conspiracy to injure. The pleaded facts fail to give rise to a claim of malicious falsehood. There is a failure to plead properly or at all an actionable misrepresentation. The Respondent does not have a trade mark to infringe.
[76] The March 2019 POC and April 2019 POC are totally without merit."

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