B e f o r e :
|KENNETH CAMPBELL (t/a Hp-c Associates)||
|- and -
|DEVON COUNTY COUNCIL||Defendant
Crown Copyright ©
'DEFRA champions sustainable development, helping Government as a whole to deliver economic, social and environmental sustainability. DEFRA is also the focal point for rural policy, supporting strong rural communities and ensuring that dispersed rural needs are reflected in social and place-based policies across Government.'
'[SWRDA] was established in 1999. Our most important role is to ensure the long-term economic success of the region. South West businesses are essential to the competitiveness of the region's economy. Our key role is to provide the conditions in which businesses can thrive…Central to the long-term economic success of South West England will be making sure the region has the right skills among its work force, the most innovative businesses and a high-quality environment, both physical and cultural.'
A brief history of the dispute
" I identified a potential marketing opportunity for Devon farm produce to be sold to local restaurants, pubs and hotels, thereby benefiting farmers by cutting out the middle man.'
The DEFRA application
"We worked very closely together had an agreement of mutual cooperation and anything he asked me for I supplied and vice versa."
In the end, I doubt whether it much matters whether this was a joint application or not. Looking at the evidence I am of the view that Mr Campbell is right in his overall assessment of the matter. In commercial language, he and DCC were in an informal joint venture in making this application. This also emerges from the numerous e-mails and telephone attendance notes which have been disclosed.
(i) meat poultry and game; eggs meat products, milk and milk products [Class 29],
(ii) Fresh fruits and vegetables' [Class 31], and
(iii) 'The bringing together for the benefit of others of a variety of foods and farm products enabling customers to conveniently view and purchase those foods and farm products in a retail outlet specialising in foods and farm produce or in a wholesale outlet.'
The prosecution and eventual registration of DEVONSHIRE FLAVOUR has a history of its own and was the target of a specific validity attack by DCC under the Trade Marks Act 1994 ('TMA'), section 39(2). Mr Campbell's registered trade mark attorney, Mr Michael Brown, gave evidence of the history of the prosecution. He was cross-examined (see below) and in my view, was a good witness.
The Booklet 'Countryside Flavour'
'This project is concerned with the potential benefits of adopting a new marketing approach, which will enable England's agriculture and food processing and, the much larger tourist industry to co-operate more closely and benefit financially from doing so.'
The second passage immediately followed the above:
'England's agriculture food processing and tourist industries are inter-dependent and to increase and strengthen the links between them, following the disastrous effects of FMD, is likely to make a significant long-term contribution to the regional economies in England. Whilst farmers are the nation's food producers and the custodians of the English countryside their financial contribution to the UK economy appears small when compared with food and drink manufacturing and even smaller when compared with the tourist industry.'
The third passage appears on the next page of the Brochure
'In spite of very poor financial returns, FMD and other diseases to [sic] afflict farmers England's agriculture has witnessed some very successful initiatives. Organic food production for example, which addresses countryside pollution, animal welfare and human health concerns, has been so successful that local supply has tended to outstrip demand.'
The fourth passage which Mr Campbell relies upon is an edited extract from Farmers' Weekly from October 2001 and for reasons which I shall state below, does not need to reproduced here.
The SWRDA Applications: SWRDA I
"At that time I regarded this as no more than a working title that Devon Food Links and local food businesses had been using to describe the aspiration to develop greater use of local food produce by local hospitality businesses (e.g. restaurants, pubs and hotels).
This also fits in with Mr Smye's way of using the phrase in his draft application i.e. not consistently as a trade mark. I shall again consider this evidence when I come to the counterclaim to cancel the Trade Mark
The SWRDA II application
'Provisionally agreed. [But] Please explain the need and value of the £50,000 sought'.
'On 7 January 2002, Mr Smye telephoned the Claimant and asked him to send to the Defendant a copy of the Claimant's DEFRA application comprising the application, the PowerPoint slides identified above for the purposes of an application to be made by the Defendant on behalf of the Claimant and the Defendant for funding for the 3 year DEVONSHIRE FLAVOUR project from SWRDA. The said materials were supplied to the Defendant solely for the purpose of that application and no other.' [Emphasis added]
The allegation was denied by DCC who in addition, raised an estoppel in relation to what had happened.
Conclusion on Licence/estoppel
Was a substantial part copied?
"Has the infringer incorporated a substantial part of the independent skill and labour contributed by the original author in creating the copyright work?"
From the Designers' Guild case one also finds the proposition that the question is whether the material taken amounts to a substantial amount of the claimant's work, not the defendant's work
Trade mark matters
(i) The use must be use in the course of trade;
(ii) It must be without consent on the part of the proprietor of the trade mark;
(iii) It must be in respect of goods or services which are identical to those for which the mark is registered; and
(iv) It must affect or be liable to affect the functions of the trade mark, in particular its essential function of guaranteeing to consumers the origin of the goods or services in question.
'3 (1) The following shall not be registered
(b) Trade marks which are devoid of any distinctive character;
(c) trade marks which consist exclusively of signs or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographic origin, the time of production of goods or of rendering of services or other characteristics of goods or services. '
Amendment during prosecution: TMA '94, s. 39(2)
2) In other respects an application may be amended at the request of the applicant only by correcting:
(a) the name or address of the applicant
(b) errors of wording or of copying, or
(c) obvious mistakes
and then only where the correction does not substantially affect the identity of the trade mark or extend the goods or services covered by the application.