England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Justice Ferris)

		The Royal Courts of Justice The Strand London WC2A Friday 6 July 2001

Friday 6 July 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr R Horvath. He wishes to have permission to appeal from an order made by Ferris J in the Chancery Division on 4 October 2000.
2. That order was made in an action brought against Mr Horvath by Computer Associates International Inc and Computer Associates Plc. Ferris J made an order on that application for judgment in default restraining Mr Horvath from infringing the claimant's registered trademark, number B 1260747 Computer Associates, or from using that name or certain specified domain names which include the words "computer associates" or any name or domain name confusingly similar to the words "computer associates" on the Internet. He was also required to take steps within his power to secure that specified Internet domain names including the words "computer associates" should no longer be used for Internet communications and to secure that those names be assigned or transferred to the second claimant, Computer Associates Plc. There were a number of ancillary orders commonly made in actions for infringement of trademark and passing off.
3. Although Mr Horvath had been served with the proceedings he did not attend the hearing. Before I deal with the grounds on which Mr Horvath wishes to appeal against that order, I should mention that he has not turned up to make his application today. A letter was sent to him on 6 June 2001 by the Civil Appeals Office to a PO box number at Enfield, Middlesex, informing him that his application for permission to appeal would be heard in open court without notice to any other party at or after 10.00 am today. He was notified that he would receive no further notice of that hearing. He was also given the usual details as to the time that would be allowed for his arguments, and he was informed that he should telephone the office after 3.00 pm on the working day before the hearing date to confirm the courtroom number and the time at which he should attend.
4. Mr Horvath did not attend at 10.30 am, when the case was listed. It is now 10.45 am and, in view of his non-attendance and the other cases that remain in the list for hearing today, I propose to deal with his application on the papers which he has submitted and on the other papers in the court file.
5. Mr Horvath was employed by Computer Associates Plc as a technical support analyst and remained in their employment until 3 July 2000. The first claimant, Computer Associates International Inc, is a US corporation. It trades in the business of creating and supplying computer software and e-business solutions internationally under the trademark Computer Associates. The Computer Associates group has been trading for the last 25 years, and in the year ending 1999 its world-wide turnover was over $5 billion. The second claimant is the United Kingdom subsidiary of the US corporation. Since its incorporation in October 1976 it has traded in the supply of computer software and e-business solutions in the United Kingdom under the trademark Computer Associates. The first claimant is the registered proprietor of the trademark which I have referred to and the UK company has at all material times been licensed to use that trademark by its holding company.
6. The claim against Mr Horvath is that on 15 October 1999 he registered and caused to be registered without the authority of the claimants Internet domain names including the words "computer-associates". He is alleged to have e-mailed the United Kingdom company on 16 October 2000 to this effect:

"I am writing regarding the computer-associates.com domain names. . . I now intend to start using the domain name computer-associates.co.uk initially. Computer Associates are welcome to contact me with a view to use the pages to advertise their products. I am also considering making a similar offer to offer [sic] software suppliers."

7. In those circumstances it is alleged that Mr Horvath has threatened and stated an intention to use the domain names referred to and to trade under the name Computer Associates in relation to computer products and services via the Internet. No response was received to a request for undertakings. In those circumstances proceedings were started at the beginning of September 2000. On 20 September Hart J made a search and seize order against Mr Horvath, and a number of injunctions. On 21 September 2000 Mr Horvath attended court to be cross-examined on an application by the claimants for committal orders against him for alleged contempt. That was followed by the order of 4 October which Mr Horvath seeks to appeal.
8. The grounds on which Mr Horvath wishes to appeal are set out in his grounds of appeal and in a number of other documents which he has submitted. In summary, he says that he should be allowed to appeal because he was not present at the hearing before Ferris J on 4 October. He thought he had to be at a hearing related to a bankruptcy matter in another court out of London. Nor was he represented. He mentions that an application for emergency legal aid had been refused. He says that he had requested an adjournment, which was wrongly refused by the judge. He wishes to defend the claim, asserting that he has a viable defence to it. He makes the complaint that his rights under the European Convention on Human Rights, article 6, have been infringed in that he has not had a fair hearing of the case.
9. In my judgment the proposed appeal has no real prospect of success. Mr Horvath was served with the proceedings. It was for him to make arrangements either to be there or for someone to be there on his behalf. From the papers before me, I am satisfied that an adjournment would have done him no good, as I am unable to see in any of the material which has been put before the court by Mr Horvath that he has any defence to the claim made against him in the particulars of claim, dated 1 September 2000, on the basis of which the default order was made by Ferris J.
10. The application for permission to appeal is refused.
ORDER: Application refused