England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 May 2011

Mr John Baldwin QC:

1. This is an action by the registered proprietor and licensee respectively for infringement of Community Trade Mark No 5349162 in respect of the mark Stunning in relation, inter alia, to perfumes and similar. The action arises out of the importation into and distribution in the UK of two consignments of unauthorised Stunning branded goods in about 2008 (the Unauthorised Goods). The goods were manufactured in India by the authorised manufacturers, Aroma de France (Aroma), but were not in authorised packaging and their importation into and sale in the UK was without the consent of the Claimants and was an infringement of registered trade mark. All these matters are common ground.
2. It is also common ground that the arrangements in relation to both the first and second consignments were taking place at around the same time, that is to say, summer/autumn 2008. The first consignment involved sales to a UK company called Elisa International Limited (Elisa) and the second involved the participation of a Mr Somani and a number of his companies. This is also common ground.
3. The issue in the case is whether the Defendant's involvement, if any, with the first and/or second consignments was such as to amount to infringement of registered Community trade mark by reason of the importation into or offer for sale and sale of the Unauthorised Goods in the EU or the UK. In relation to the first consignment, there was an offer for sale by the Defendant in relation to some of the goods prior to the sale to Elisa and there is a further issue as to whether that involved any trade mark infringement.
4. There were two disputes as to the relevant law. The first is whether or not an oral licensee of a Community Trade Mark has locus to sue for infringement, the second is whether oral use of a Community Trade mark can be an infringement. I was told that there was no binding authority on either point.
5. Pursuant to section 28(2) of the Trade Marks Act 1994, a licence under a UK registered trade mark is not effective unless it is in writing and signed by or on behalf of the grantor. Accordingly an oral licensee of a UK registered trade mark would have no locus to sue for infringement; he would not have an effective licence at all.
6. However, Community Trade Mark Regulation No 40/94 is of direct effect and Article 97(1) provides that the courts (that is to say, this court) shall apply the provisions of the Regulation. Although there is provision for assignments of CTMs to be in writing (Article 17(2)), there are no formalities with respect to licences. Article 22(3) provides that (unless precluded by contract) a licensee may bring proceedings for infringement if he has the consent of the proprietor and Article 22(4) provides that a licensee is entitled to intervene in infringement proceedings brought by the proprietor for the purposes of obtaining compensation for any damages he may have sustained. These Articles suggest that an oral licensee may bring proceedings for infringement if he has the consent of the proprietor.
7. I was referred to Article 16 of the CTMR which provides that a Community trade mark as an object of property shall be dealt with in its entirety as a national trade mark registered in the Member State in which the proprietor has his seat or domicile on the relevant date. It was suggested that this provision subjects Community trade marks to the stipulations of section 28(2) of the 1994 Act. However, Article 16 has effect '[u]nless Articles 17 to 24 provide otherwise ...', and it seems to me that Article 22 does provide otherwise. Accordingly, in my judgment an oral licensee of a Community trade mark may bring proceedings for infringement if he has the consent of the proprietor of the mark.
8. Regarding whether oral use of a trade mark can amount to infringing use, the usual texts books seem to say that such is the case and it appears to be implicit in the Court of Justice's decision in C-2/00 Holterhoff [2002] FSR 52. Furthermore, it is clear that sounds can be registered as Community trade marks (so long as they are capable of being represented graphically), so it would be peculiar if oral use of a mark could not amount to an infringement. Article 9(2) gives examples of use which may amount to infringement and there is nothing to suggest oral use is excluded. I am satisfied that oral use of a mark can amount to infringement of the rights granted by registration of a Community trade mark.
9. I was also shown a number of authorities on joint tortfeasance and common design. It is not necessary to discuss them here. There was no dispute about the general principles; the dispute was about the facts and whether or not they were sufficient to fix liability upon the Defendant.
10. The Defendant, Mr Thakrar, is an experienced dealer in perfumes and similar goods and in about June or July 2008 he became aware that Aroma had some Unauthorised Goods for sale and wanted to sell them. At that time he says he was an agent for a Belize company called Brand Distributors Limited (BDL). At one stage in the proceedings he tried to distance himself from the acts of BDL but Mr Deacon in his final submissions accepted that what BDL had done was rightly attributable to Mr Thakrar. Thus the issue is whether Mr Thakrar or BDL infringed the rights granted by registration of the trade mark by reason of what they did in relation to either of the two consignments.
11. It is convenient to deal with the second consignment, the one involving Mr Somani, first. In his witness statement dated 16 December 2010 Mr Thakrar said this:

My involvement with the sale of perfumes from Aroma to Rajesh Somani was limited. I simply informed Rajesh Somani about the [Unauthorised Goods] and Rajesh Somani discussed the details of his purchase and transactions direct with Aroma. I simply acted as a contact between Rajesh and Aroma at the very outset.

Following my initial involvement as a contact I had nothing more to do with the Second Consignment with which these proceedings are concerned. I was unaware that this consignment of stock subsequently entered the UK and was sold by Rajesh Somani and his companies within the EU and the UK. I had no involvement with this whatsoever.

12. If what Mr Thakrar said in his witness statement were true, he would have incurred no liability for trade mark infringement.
13. Mr Somani's evidence about the second consignment was different from that of Mr Thakrar. His evidence was that, at the outset, Mr Thakrar and he agreed together that Mr Thakrar would negotiate the purchase of a consignment of Unauthorised Goods from Aroma by one of Mr Somani's companies, that the goods would be shipped to Dubai and thereafter to the UK by one of those companies, and that once in the UK, the goods would be sold principally through the efforts of Mr Thakrar but also of himself, onto the UK market.
14. Mr Somani's evidence was that the deal was first hatched in a meeting between himself and Mr Thakrar in Dubai on 1st July 2008, that the goods of the consignment became the subject of an invoice from Aroma to one of his companies dated 11 July 2008 (for 3,000 of the 100ml size and 15,000 of the 30ml size), that the goods were shipped from India to Dubai because Mr Thakrar said that Aroma would not ship them to an EU port, that they were onshipped to Rotterdam and then to the UK for sale onto the market, and that the original intention was that they would be marketed in the UK by a company called Celebrity World Limited, which was a joint venture company between himself and Mr Thakrar. He says that Mr Thakrar made all the decisions and was responsible for all the arrangements in relation to this transaction although he accepted that it was a joint transaction carried out by himself (through one of his companies) and Mr Thakrar together.
15. There is a striking difference between the evidence of Mr Somani and Mr Thakrar and counsel accepted that it was not possible for them both to be truthful witnesses.
16. Mr Somani was the first of the two to give evidence. I got the impression from Mr Somani when he was giving evidence that he was doing his best to assist the court and that the evidence he was giving was truthful. He answered questions clearly and carefully, and did not seem to me to be evasive or otherwise attempt to avoid issues put to him. He is a man who makes notes of his meetings and, accordingly, with the help of his notes, was able to give what seemed to me to be clear evidence about one crucial meeting, that of the 1^st July 2008. His evidence was supported by a number of documents and none of them contradicted it. I will come to these documents in due course.
17. I did not get a similar impression when Mr Thakrar gave evidence. My impression of Mr Thakrar was that when he was giving evidence he was attempting whenever he could to distance himself as much as possible from the importation into and sale of the Unauthorised Goods in the UK. On many occasions, instead of answering a question directly, he was evasive. On many occasions he made excuses instead of answering the question, excuses which were simply unsatisfactory. Moreover, it became clear from cross examination and from an examination of the contemporaneous documents that what Mr Thakrar had said in his evidence in chief was untrue.
18. The first relevant document purports to record the notes of a meeting at a hotel in Dubai between Mr Thakrar and Mr Somani on the 1^st July at which, according to Mr Somani, the plan to purchase and import into the UK substantial quantities of 'Stunning by Katie Price' was first discussed. According to Mr Somani, Mr Thakrar said that Aroma had these quantities available for sale, that he and Mr Somani should import them into the UK where Mr Thakrar would sell them, and some financial advantages relating to the deal were explained. In his fourth witness statement Mr Thakrar said that the meeting did not take place, that he was only in Dubai for 3 hours whilst in transit for a flight to India, that he did not go to any hotel in Dubai (there would not have been time) and that he recalled that during the 3 hour wait for his on-flight to India he went for a walk to pass the time but did not meet anybody. He said that he did not become aware of Aroma having quantities of the Stunning perfume available for sale until later in July and that, accordingly, he could not possibly have had the alleged meeting on the 1^st July. He said that Mr Somani's evidence was simply untrue. In oral evidence in chief he backed off from the assertion that he did not meet Mr Somani on 1^st July and said he may have done so. But he persisted with his story that he did not and could not have conceived or been party to any plan to import into and sell any Stunning perfume in the UK.
19. There were a number of witnesses in the case who refer to Mr Thakrar offering for sale the Stunning perfume from Aroma during June 2008, which is not consistent with him not being aware of these goods until after the 1^st July. Furthermore an invoice from the Royal Ascot Hotel in Dubai records Mr Thakrar checking in at 08:45 on the 1^st July and leaving at 19:16 on that day. Having heard Mr Thakrar give his evidence, I am quite satisfied that his account of the events of the 1^st July was untrue; further that this was deliberate and in order to persuade me that Mr Somani's notes of that day had been fabricated and were unreliable.
20. There are other documents which also support the view that Mr Thakrar's evidence was not true.
21. There is an email of 14 July 2008 from Mr Thakrar which records him supplying a copy of the invoice from Aroma to one of Mr Somani's companies. This in itself demonstrates that Mr Thakrar's evidence in chief was not frank.
22. An email of 15 July records Mr Somani thanking Mr Thakrar for the invoice and asking for his instructions. The reply from Mr Thakrar of a few hours later says this:

I have negotiated 50 percent in advance and 50 percent on dp - so please wire the 50 per cent as soon as possible - let the goods come into dubai and then I will sell them over here.

Mr Thakrar accepted that he sent this email. Moreover he admitted in cross examination that he arranged for the financial terms by which Aroma would be paid for the goods. This email demonstrates that Mr Thakrar's evidence in chief was untruthful.

23. When Mr Thakrar wrote that he would sell the goods 'over here', he was in England, which was his usual place of business. Selling the goods in the UK was entirely consistent with Mr Somani's evidence to the effect that the plan was to import the goods in the UK and sell them there. Mr Thakrar said that the reference to him selling the goods 'over here' was a reference to him selling the goods out of Dubai from his office in England. This evidence was completely inconsistent with his evidence in chief and is a further demonstration that that evidence was not truthful. I am satisfied that the reference to selling the goods 'over here' was a reference to him selling the goods in the UK in accordance with the plan which he and Mr Somani had hatched.
24. On 16 July Mr Somani replied to Mr Thakrar's email of the 15^th and said that he would request one of his employees to arrange payment of the invoice, would bring the stock to Dubai and would await further instructions from Mr Thakrar. Later that day Mr Somani's employee emailed Mr Thakrar and asked for 'complete details' of the consignment so that he could send a purchase order and arrange payment accordingly. In response to that email Mr Thakrar emailed Mr Somani with the relevant details and two proforma invoices. This correspondence is yet further evidence that Mr Thakrar's evidence in chief was untruthful.
25. In addition, there is an email chain which shows Mr Thakrar's intimate involvement with this consignment of Unauthorised Goods including him taking responsibility for checking the quality of the goods. The email explains that the factory would not allow or like the usual kind of inspection, due to what Mr Thakrar described as ''sensitive' nature of the transaction', and that he would do it himself. Mr Thakrar accepted that this email chain was a proper record of the communications but said that he did not in fact inspect the goods. Even if he did not inspect the goods (which I doubt but do not need to make a finding about), this email chain is further evidence that Mr Thakrar's evidence in chief was untruthful.
26. As already indicated, I have to assess the evidence of both Mr Somani and Mr Thakrar and reach a conclusion as to whose evidence I prefer. I have no hesitation in preferring the evidence of Mr Somani.
27. Mr Somani in his evidence described how the goods were imported into the UK from Dubai via Rotterdam in accordance with the plan that had been conceived between Mr Thakrar and himself, and that thereafter Mr Thakrar and he offered them for sale and sold some of them. He told me of Mr Thakrar's attempts to sell some of the goods to traders in the UK called Jonathan Lipman and Peter Slack. Mr Thakrar said that this evidence must be untrue as he did not even know that the goods had reached the UK. This evidence from Mr Thakrar was inherently unlikely and I reject it. I accept the evidence of Mr Somani and hold that Mr Thakrar played a full and sufficient part in the importation into the UK and offer for sale and sale in the UK of the Unauthorised Goods to render him liable for infringement of trade mark in respect of this consignment of goods.
28. With respect to the first consignment in issue, Mr Thakrar admits BDL were responsible for or, at least, were party to shipping the Infringing Goods to a bonded warehouse in Rotterdam (which is outside the EC for trade mark infringement purposes) and claims that neither he nor BDL had any involvement with the goods thereafter. I was referred to Case C-405/03 Class International v Colgate Palmolive [2006] Ch 155 and accept that merely transporting goods to a bonded warehouse in the EC is insufficient to confer liability for trade mark infringement. Importation requires the introduction of goods into the Community for the purposes of putting them on the market therein.
29. The first consignment of Unauthorised Goods contained 15,792 bottles of 30ml Stunning Eau de Toilette and 3,600 bottles of 100ml. They were shipped from Mumbai to Rotterdam pursuant to a bill of lading dated 1 August 2008 and with the consignee indicated as BDL at Mr Thakrar's business address in the UK. They were cleared by agents in Rotterdam and were transported to the warehouses of Davies Turner near Bristol. There is a document said to be a commercial invoice in respect of these goods dated 24 July 2008 from BDL to a company called Elisa International Limited (Elisa) and numbered 55599/08. Mr Thakrar contended that this was the master invoice in respect of these goods and that it proved Elisa was the importer of the goods into the EC. He said that references to his UK business address on the bill of lading were a mistake, but in any event the goods were imported by Elisa and not BDL.
30. There is some history to this consignment. Mr Thakrar accepted that, on behalf of BDL, he tried to sell some of the goods (5,800 of the 30ml spray and 3,500 of the 100ml) to a company called Milestar Limited. Commercial Invoice No 55597/08 was raised on 11 July 2008 which required payment of a deposit of £25,000 to a UK bank account in order to secure the sale. However, Milestar's accountant noticed that the seller, BDL, was not VAT registered and did not appear to be a UK company. He advised against the payment of the sum demanded. The money was not paid and, therefore, this attempted sale fell through.
31. The invoice provided that the goods be shipped to Milestar at their London address. Mr Thakrar said that this did not mean that the goods would actually be imported into the UK, and that since Milestar traded internationally, they would have been able to sell them onto the market outside the EU from the bonded warehouse in Rotterdam to where BDL would ship them. Mr Gandesha from Milestar said that he believed he would be free to sell the goods anywhere, including in the UK. Since the sale fell through, however, there is no need for me to say any more about this aspect of the matter.
32. There was an issue about whether Mr Thakrar referred to the trade mark Stunning in his discussions with Milestar. In his oral evidence in chief, Mr Gandesha of Milestar referred to Mr Thakrar as offering him Stunning during some time in June 2008 but that the deal did not go through. In cross examination he said that Mr Thakrar probably used the Katie Price mark and not the Stunning mark, although he did not seem to me to be so sure when he gave this answer. In his witness statements, Mr Thakrar makes repeated use of the mark Stunning in relation to these Unauthorised Goods. He clearly uses the mark a lot, which is hardly surprising since it is the brand name of these goods. Further, when he offered the very same goods to Elisa, there was clear evidence from Elisa that the offer was made by reference to the name Stunning. I am satisfied that it is more likely than not that Mr Thakrar did use the mark Stunning when offering these goods to Milestar.
33. Mr Miller QC, counsel for the Claimants, contended that it did not matter whether or not there was oral use of the mark Stunning since the goods themselves bore the mark and these goods were being offered for sale in the UK. It is true that the goods were being offered in the UK, but Mr Thakrar contended that he intended the goods be sold outside the EC. Having heard Mr Gandesha, I am quite satisfied that he did not convey that intention to Milestar. Accordingly, in my judgment there was infringement of trade mark in relation to these dealings with Milestar. It would appear, however, that no real damage to the Claimants was occasioned thereby.
34. Whilst he was negotiating the sale of the Unauthorised Goods to Milestar, Mr Thakrar was also offering the goods to others including a Mr Mathew of Elisa. I was shown two witness statement of Mr Mathew but he did not appear before me and was not tendered for cross examination. Mr Thakrar was asked why Mr Mathew had not attended for cross examination or otherwise make himself available and Mr Thakrar said that this was because he had not invited Mr Mathew to do this. The inference I draw is that Mr Thakrar preferred not to have Mr Mathew's written evidence tested by cross examination.
35. There are a number of documents which relate to this transaction and the facts appear to be these. Pursuant to an invoice dated 23 July 2008, BDL bought the goods from Aroma. The terms of delivery and payment were CIF, Payment against Documents and the consignee was named as BDL at Mr Thakrar's London address. In two places on this invoice the Final Destination of the Goods is designated as the UK, a matter which Mr Thakrar contended was a mistake. On 24 July commercial invoice number 55599/08 was drawn by BDL on Elisa in respect of the same quantity of goods. The invoice stated that it had been agreed that upon receipt of the invoice, payment by Elisa of the invoice sum (£134,261.68) would be made within 7 days.
36. Mr Thakrar said that the insertion of these payment provisions was a mistake and that it was never intended that Elisa pay other than a deposit of £25,000. Further there was evidence of not only Elisa's means (they were very slender), but also of the way it did business. That evidence was to the effect that it never bought or paid for goods until it had a seller therefor and could arrange a back to back transaction so that it did not have to be out of pocket, or have any involvement with the physical goods themselves. The relevance of this detail is that Mr Deacon, counsel for Mr Thakrar, contended that this invoice of 24 July 2008 was the master invoice in respect of these goods and that property in them passed to Elisa on that date and stayed with Elisa thereafter.
37. The shipment from India was covered by a bill of lading dated 1^st August 2008 with the place of delivery Rotterdam and again the consignee was BDL. The goods arrived in Rotterdam on or shortly before 4 September 2008. The bill of lading was transferred to BDL on 4^th September 2008, being the date on which Aroma were, in part, paid. Mr Thakrar must have been responsible for this payment since he was the sole operator of BDL's bank account. There was evidence that when the goods were on the high seas, Mr Mathew changed his mind about the quantity of goods which Elisa was willing to buy. On 14 August 2008 BDL raised a proforma invoice on Elisa for 6,928 of the 30ml and 3,600 of the 100ml items. With respect to the terms of payment etc, the invoice records 'All Existing Terms & Conditions Apply'.
38. On 11 September 2008 Elisa invoiced Milestar for 5,800 of the 30ml size and 3,500 of the 100ml size and BDL issued a commercial invoice to Elisa in respect of the same quantity. The invoice number (55597/08) was the same as that used for the BDL/Milestar transaction which fell through (and which was for the same quantity of goods), that is to say the invoice number was reused. This is an example of a back to back transaction which Elisa said it carried out.
39. On 19 September 2008 Elisa invoiced another UK trader, M&N Traders Limited, for 384 of the 30ml size and 100 of the 100ml, and on 25^th September BDL issued a commercial invoice to Elisa in respect of the same quantity of goods. The invoice number was 55599/08. Finally, on 8 November 2008 Elisa invoiced M&N Traders for a further 744 30ml items and on 12 November BDL issued a commercial invoice to Elisa in respect of these items. Thus the entire quantity of the proforma invoice (BDL/Elisa) of 14 August was back to back sold on by Elisa to UK companies.
40. Mr Thakrar said that although there had been an agreement to reduce the quantities sold to Elisa, they were increased up again to the original amount, although this was done without his involvement. Thus, he said, all the goods belonged to Elisa when they arrived in Rotterdam. There are no documents evidencing this upward revision and Mr Mathew of Elisa makes no mention it. I am satisfied that it did not happen. I consider this to be yet another spurious attempt by Mr Thakrar to distance himself from the Unauthorised Goods.
41. It was urged upon me that the commercial invoice of 24 July 2008 governed the sale of these goods to Elisa by BDL and that the subsequent commercial invoices for the reduced quantity were of no effect, were merely for the accounting records and purposes of Elisa. I do not accept this. It is clear to me that the commercial invoice of 24 July was cancelled at some stage and that Elisa only committed to buy and bought the reduced quantity itemised in the 14 August 2008 proforma invoice. The reuse of the 24 July invoice number 55599/08 for a September transaction is consistent only with such an explanation, as is the evidence of the 3 back to back transactions whereby Elisa sold on the goods. Thus, I am satisfied that when the goods landed in Rotterdam, a substantial proportion of them belonged to BDL.
42. Ownership of the goods, however, is not the only question. The real question is who imported them, for it is that person that attracts liability for infringement by importation. Mr Thakrar said it was not BDL but Elisa, further that he did not know that the goods had ever reached the UK.
43. The bill of lading lists a bonded warehouse, VAT Logistics (Ocean Freight) BV, as the Destination Delivery Agent and Ziegler Nederland (Dutch freight forwarders) as a Notifying Party. Further there was evidence that Davies Turner, UK delivery agents, were used as delivery agents. These were agents who had often been used by both Elisa and Mr Thakrar. On 13 August 2008 Elisa emailed Ziegler, with a copy to Mr Thakrar, authorising them to deliver the entire container of goods to Davies Turner who were to bring the goods to the UK. The copying in of Mr Thakrar with this email is consistent with BDL having ownership of a substantial proportion of the goods, as well as with BDL and Mr Thakrar being party to the importation by Elisa. On 22 August 2008 Stephanie Hull, Senior Ocean Import Supervisor of Davies Turner, wrote to Ziegler in connection with this shipment and, so far as is relevant, said (1) Please clear the shipment on behalf of BDL and use your VAT number, (2) Please bring the container to your warehouse and unload the goods, (3) Goods need to be sent by road to the UK, (4) UK importer is Elisa, (5) Please deliver to Elisa c/o Davies Turner, Bristol. As a result of that instruction the whole consignment of 19,392 pieces was shipped to Davies Turner where it was unloaded once more. Davies Turner no longer have possession of the goods and I infer they were sold on by the owners, being Elisa in respect of the part consignment they bought and BDL in respect of the remainder.
44. Mr Thakrar introduced into evidence two letters from a Mr Lucy at Davies Turner. They purported to confirm that the consignment was cleared into the EU on behalf of Elisa and transferred to the UK under Elisa's VAT number and that BDL were not involved with the import customs clearance of this consignment. There was no witness statement from Mr Lucy and he was not tendered for cross examination. He does not say what, if any, inquiries he made and nor does he exhibit any documents. In my judgment this correspondence from Mr Lucy was insufficient to overturn what appears to me to be the clear instructions issued by Davies Turner, through Stephanie Hull, to Ziegler. That instruction was to import the goods on behalf of BDL.
45. Mr Deacon contended that Davies Turner had no authority to import the goods into the EU on behalf of BDL and therefore could not have done so. But I am satisfied that they had apparent authority and that this is enough.
46. As already mentioned, Mr Thakrar's evidence was that his and BDL's involvement and connection with these goods ended in the bonded warehouse in Rotterdam. Unfortunately that was not true.
47. As already set out, Elisa sold a substantial quantity of the goods to Milestar on about 11 September 2008. On 16 September, Elisa emailed Milestar saying that upon receipt of the payment monies the goods would be delivered and that the packing list in respect of the delivery would follow that afternoon. The packing list was detailed and set out that the delivery would be in 9 pallets containing various boxes and the details were given. It was sent to Milestar by Mr Thakrar.
48. There is more than one point arising from the sending of this packing list. First, in spite of it being sent to Mr Gandesha of Milestar (or his UK retail chain, Silverfields) Mr Thakrar persisted with this evidence that he did not know the goods were in the UK. This seemed to me to make no sense at all. Perhpas it was based on Mr Thakrar assuming the goods were still in Rotterdam, but if they were, they would not be on the 9 pallets to which Mr Thakrar referred. Secondly, Mr Thakrar said he was able to supply this information to Mr Gandeshar because he remembered how many items had been packaged in the various boxes when the goods had been loaded in India. It was pointed out to him that the goods had been unpacked and repacked at least twice since India, and in any case the information concerning the number of pallets could only have come from Davies Turner who had placed the goods on the pallets. Mr Thakrar said that Mr Mathew of Elisa, had phoned him to give him the extra information that he needed. Now, of course, it was Mr Mathew who had told Milestar that the packing list would be supplied shortly, plainly indicating that he did not know how the goods would be packed. Mr Mathew's witness statements are silent on the topic. Counsel for the Claimants submitted that Mr Thakrar's explanation of the contents of this email and the details for the packing list were fabricated to distance himself from the transaction, and I agree. I consider it much more likely than not that Mr Thakrar obtained the packing information directly from Davies Turner and copied and pasted Davies Turner's email containing the information into an email he sent to Mr Gandesha (which would explain a spelling mistake within it).
49. I am quite satisfied that Mr Thakrar was fully involved in the supply of these goods by Elisa to Milestar and other traders in the UK. Mr Deacon reminded me of Townsend v Howarth (1875) 48 L J Ch 770 and of the differences between facilitating an act and procuring or being party to it. His difficulty, however, is with the facts. In my judgment the position on the facts is that Mr Thakrar identified the UK as a potential market for the Unauthorised Goods which Aroma had available for sale and he set about a process for bringing the goods to the UK for sale here.
50. It is at this latter level of generalisation that the two consignments merge. In the case of the first consignment, the goods were brought to Rotterdam by BDL whereas in the case of the second they were brought by one of Mr Somani's companies. In the case of the first consignment they were imported by BDL (or possibly Elisa, it does not matter since in my judgment it was part of Mr Thakrar's plan to get them into the UK for sale here) and in the case of the second consignment they were imported by one of Mr Somani's companies. In the case of both consignments, Mr Thakrar played an active part in selling the goods on the UK market and in the delivery of those goods to UK customers. I reject his evidence that he did not know that the goods were in the UK. I reject his evidence that he played no part in any infringing activity. I am more than satisfied that he was not telling the court the truth about his dealings in the Unauthorised Goods.
51. In the circumstances the claim for infringement of Community trade mark No 5349162 succeeds.