England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		26 June 2008

Introduction

1. This is an action for infringement of copyright and registered trade mark brought by Mr Kenneth Campbell trading as Hp-c Associates ('Hp-c'). Mr Campbell also claims additional damages under s. 97(2) of the Copyright, Designs and Patents Act 1988 ('CDPA '88'). The defendant is Devon County Council ('DCC') for whom Mr Simon Malynicz appeared. DCC denies infringement and has counterclaimed for a declaration that the trade mark in issue, DEVONSHIRE FLAVOUR ('the Trade Mark'), is invalid. The parties have raised sundry estoppels in addition, including an allegation by Mr Campbell that DCC is estopped from challenging the validity of the Trade Mark.
2. The dispute has arisen because of the allegedly unauthorised use which was made by DCC of literary material, of 'slides' for use in PowerPoint presentations and the Trade Mark in an application to SWRDA^[1] for regional funding. The copyrights and Trade Mark relied on by Mr Campbell were generated as a result of another, earlier application for funding, on that occasion to DEFRA^[2] which was made by Hp-c with DCC's collaboration and support. All the material in issue is contained in a booklet (the 'Booklet') prepared by Hp-c and entitled 'Countryside Flavour' - which in fact formed the basis of the DEFRA application. Both applications for funding came about as a result of the effects of the foot and mouth disease ('FMD') epidemic of early 2001 which had a devastating effect upon rural life in Devonshire in particular.
3. The proceedings have however become clouded by serious allegations by Mr Campbell of deceit, falsification of documents, underhand dealings and unconscionable behaviour generally on the part of a number of civil servants employed by DCC and SWRDA. In my view this is an unfortunate and (as I shall show) wholly misconceived overlay which has much complicated matters.
4. An unofficial daily transcript was prepared by a member of DCC's legal team which I have made use of^[3].

Dramatis personae

5. Mr Kenneth Campbell. Mr Campbell has had a varied career and is devoted in particular to promoting the interests of the West Country. He has been a farmer and has for some time been involved in the hospitality industry. More recently he has headed Hp-c working from his home near Cullompton in Devon. Hp-c has an interest in furthering various business developments and works with national, regional and similar official bodies. It was working in this capacity that the events subject of the present dispute arose. Hp-c is I think, essentially Mr Campbell's trading vehicle but he does import into it the services of others in conducting his business^[4].
6. Having enlisted the assistance of specialist IP counsel and a solicitor to prepare his Particulars of Claim, Mr Campbell thereafter conducted his case by himself. As a litigant in person, I found Mr Campbell to be an industrious and articulate person and a careful litigant as well. But as I shall show, he was unable realistically to cope with the principles and vagaries of copyright and trade mark law.
7. As a witness, Mr Campbell had a compelling belief in the justice of his case which led him, on occasion, to a serious lack of objectivity. He felt deeply hurt by the way he believed he had been treated by DCC whose personnel, so he considered, had acted dishonourably and to make matters worse, in doing so, had unlawfully made use of his copyright and trade mark rights.
8. DCC. DCC needs no introduction but I shall say something about the two of its employees who had most to do with the events which have led to this dispute, both of whom gave evidence. At the time when Mr Campbell first became involved with them, that is in the latter half of 2001, DCC was already running an internal project called 'Devon Food Links'^[5], which was a business support project for the benefit of local food and drinks interests.
9. The leading person in DCC to be involved in the Devon Food Links initiative was at all material times a Mr Ian Hutchcroft. He was working in the Chief Executive's Directorate where he has been seconded to the Policy and Economy Units to assist in rural recovery following the FMD epidemic. He still in fact works for DCC. I found Mr Hutchcroft to be an excellent witness who was ready to answer questions with authority, frankness and accuracy.
10. The Project Manager of DCC's Devon Food Links was a Mr Jonathan Smye who reported to Mr Hutchcroft. He has a degree in agriculture and was employed by DCC from June 2000 to July 2004. He now works for a hospital trust in Bristol. He was the person with whom Mr Campbell had most contact at this time and, as became apparent at trial, it is Mr Smye against whom Mr Campbell feels most animus. As a witness I found Mr Smye rather defensive and to manifest an ongoing sense of self-justification. I am satisfied however that he was at no time misleading the court.
11. With regard to the two applications for funding which I have noted above, Mr Smye had most to do with the joint application to DEFRA whereas Mr Hutchcroft was in charge of DCC's application to SWRDA. However, both persons were well aware of what the other was doing in relation to both applications, as I shall recount below.
12. I should next say something about the two public bodies which played a major part in this matter, DEFRA and SWRDA.
13. DEFRA (London). The Department had a number of current programmes which had the potential to attract funding (see below). In its ADS 3 round (see below), the normal maximum award was £150,000.The aspirations of this Government Department may perhaps be gleaned from the following exuberant extract from its website:

'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.'

14. SWRDA (Plymouth) SWRDA's website also uses aspirational language to define its mission:

'[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.'

15. Both these bodies possess substantial funds to allocate to deserving projects within their terms of reference. I should however mention that at all material times, whereas DEFRA collaborated with both public and private bodies for this purpose, SWRDA dealt exclusively with public bodies – county councils, in particular. I say this because Mr Campbell/Hp-c could never have participated with DCC in the SWRDA application, a fact of which I am sure Mr Campbell was aware. Once SWRDA funding was granted however, a county council was able thereafter to sub-contract with private interests (such as with Hp-c).
16. The two applications which are central to this dispute were thus entirely separate. But there was nevertheless an interaction as regards the allocation of funds between DEFRA's own England Rural Development Programme (ERDP) and other DEFRA funding (see below and Document X1). At one stage there was an insinuation on Mr Campbell's part that DCC's SWRDA application somehow 'torpedoed' the DEFRA application on the basis of 'double funding'. I reject this as being wholly without foundation in fact.

A brief history of the dispute

17. In 2001 Britain was hit by a particularly severe epidemic of foot and mouth disease which greatly affected the rural economy. In Devonshire, the local farming community was badly hit and this had a knock-on effect in the tourism and local food industry. DCC soon became involved in implementing a comprehensive recovery programme inter alia through its Devon Food Links project. Mr Smye soon found himself involved on a daily basis with local businesses, farmers and individuals in order to assist them in obtaining funding and to help them develop business ideas. Thus it was that he was introduced to Mr Campbell at the Devon County Show in the Summer of 2001. Mr Campbell of course nurtured similar aspirations but in a different capacity. As he put it:

" 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.'

18. The two got on well and before long each recognised in the other a potential ally to further their aims. DCC however lacked the funding necessary directly to support a consultancy by Hp-c and so Mr Campbell sought to achieve financial support by an appropriate application to DEFRA under their Agricultural Development Scheme (called ADS-3). Mr Smye thought this was a capital idea and thus was born the Countryside Flavour booklet.

The DEFRA application

19. Mr Smye helped Mr Campbell with the compilation of the Booklet and inter alia arranged for (and also arranged for DCC to pay for) Mr Campbell to make presentations to local farmers and others. All this occurred during September/October 2001 and culminated in the application being made in the name of Hp-c Associates on 29 October 2001 – using the Booklet for this purpose.
20. There was a minor dispute as to whether this was a joint application or merely an application 'supported by' DCC, Mr Campbell asserting the former, DCC the latter.
21. The first sentence of the 'Executive Summary' of the Booklet states that the application was being made by Devon Food Links (i.e. of DCC) and Hp-c. Mr Smye points to his letter of support (26 October 2001) which was sent with the application, which he says states DCC's position accurately. In his evidence^[6], Mr Smye said this:

"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.

22. At this juncture (and in the light of what is to come) it is perhaps worth mentioning an incident which occurred in September 2001, that is, before the DEFRA application was actually lodged. Mr Smye recalls that he informed Mr Campbell that the DEFRA application was unlikely to succeed if funding was available from elsewhere. Mr Smye says that he had in mind DEFRA's ERDP^[7] whereas Mr Campbell recalls SWRDA being mentioned in this connection. In either event, it is clear that at all material times Mr Campbell was under no illusions that DEFRA funding was not certain^[8].
23. Mr Campbell envisaged that his application would be the first in a series of similar applications for other parts of England and Wales which had been affected by FMD. The application was for funding of £150,000 over a three year financial period, to start with what he saw as this pilot project.
24. On 23 November 2001, almost a month after the date of the application, Mr Campbell applied to register the mark DEVONSHIRE FLAVOUR in respect of

(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.

25. As will be seen, it is significant that Mr Campbell and Mr Smye continued their collaboration until well after the date of lodging of the DEFRA application. However on 15 February 2002 DEFRA informed Mr Campbell that the application had been rejected – for various reasons which it is not necessary to go into. This was evidently a huge disappointment to Mr Campbell who I have no doubt, had put a great deal of time and research into the project. Mr Smye said (and I believe him) that it was not until a meeting with Mr Campbell and local farmers and others at Barnstaple on 6 March 2002 that he (and thus DCC) were informed that the DEFRA application had been rejected.

The Booklet 'Countryside Flavour'

26. As noted, this Booklet constituted the DEFRA application and was to have been the template for use elsewhere. The Booklet is divided into a number of sections: An Executive Summary, An Introduction, 'The Issues', 'The Objectives', Financial assumptions, Profit and loss projections, Cash flow projections and so forth. There is even a section entitled 'Recipe Dishes- 'Devonshire Flavour' Traceable local organic ingredients' which featured strongly in Mr Malynicz's case on DCC's counterclaim to cancel the Trade Mark. Another section entitled 'PowerPoint presentation' reproduces 32 slides the artistic copyright in two of which (nos. 10 ('Concept') and 11 ('Supply Chain')) are alleged later to have been infringed by DCC. Mr Campbell further alleges that his literary copyright has been infringed in four short passages from the section entitled ' An Introduction'. I would add that the Booklet runs to some 50 pages in all.
27. Three of the passages in question are reproduced below:

'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.

28. It was not in dispute that Mr Smye copied these four passages from the Booklet (in two cases, verbatim) into his draft application for SWRDA funding, the so-called SWRDA I application (see below). With regard to the two PowerPoint slides in issue, there were changes between what is shown in the 'slide section' in the DEFRA application and the two slides which were included with Mr Smye's draft SWRDA I application. I must therefore consider these PowerPoint slides a little further.
29. First, both slides in the first SWRDA application (i.e. SWRDA I) bear prominently the words DEVONSHIRE FLAVOUR ™ in stylised writing, together with the initials 'df', also in stylised form. These features were absent from the slides in the DEFRA application. The remainder of the slide entitled 'Supply Chain' appears to be identical to that (i.e. no 11) in the DEFRA application. However, with regard to the other PowerPoint slide, slide no. 10 ('Concept'), what was included in SWRDA I is clearly not the same as slide 10 in the Booklet. In addition to the DEVONSHIRE FLAVOUR™ title there are more substantial changes to the body of the slide – though it is evidently based on the earlier slide no 10.
30. The evidence was that the modified slides were certainly made up by Hp-c at some other time, most likely after the date of the DEFRA application, having regard to the reference to the trade mark application (see §24 above). They were given to Mr Smye by Mr Campbell and were indeed copied by Mr Smye for the SWRDA I application. Later in this judgment I shall have to mention this incident again and will refer to this modified 'Concept' slide (no 10) as 'the Modified Concept slide': see § 59. Neither of these modified slides were pleaded.

The SWRDA Applications: SWRDA I^[9]

31. The idea of applying to SWRDA for funding which eventually led to this dispute, was Mr Hutchcroft's. Mr Hutchcroft it seems, had had ongoing contact the SWRDA office in Plymouth on a number of matters during 2001. He was in charge of DCC's Devon Food Links and it was thus that the decision to apply for funding came to be made. I would mention that Mr Campbell was at all material times well aware that Mr Smye worked under a 'boss' at DCC and in fact knew that it was Mr Hutchcroft since it was he who first put Mr Campbell in touch with Mr Smye in mid -2001. For his part, Mr Hutchcroft was well aware of the DEFRA application and was kept informed of its general progress by Mr Smye.
32. Mr Hutchcroft said that he made the decision to apply for SWRDA funding sometime in early November 2001 after having sounded out various persons in that organisation. He spoke to Mr Smye about this and asked him to select some relevant SWRDA projects and having done so, to prepare draft applications and submit them to him. Mr Smye's recollection was that this happened around 8 November 2001^[10]. As a result, Mr Smye selected items which were likely to have resonance with DCC's Devon Food Links project including one which he chose to call 'Devonshire Flavour' – with of course, the DEFRA collaboration with Mr Campbell in mind. He accordingly drafted an application for a project having this title and sent it to Mr Hutchcroft for consideration. It is not clear when he did this but it seems to have been after 8 and before 30 November 2001^[11]. This was to become SWRDA I and was approved and eventually sent to SWRDA (as part of a larger bid covering 9 projects altogether) by Mr Hutchcroft on 30 November 2001. One element of that bid was for £50,000 against the Devonshire Flavour project.
33. SWRDA I is to be found as Schedule 3(a) to the Particulars of Claim and is entitled 'Devon Food Links, Devonshire flavour (sic) business plan'. It runs to seven pages including two pages of what Mr Campbell says are reproductions of two of the PowerPoint slides used for the DEFRA application^[12]. It was compiled entirely by Mr Smye.
34. I must next briefly go back in time and say something about how SWRDA I came to be drafted. Mr Smye decided to bring into the application a number of features of the joint 'Countryside Flavour' Booklet, subject of the DEFRA application^[13] even though the SWRDA application was in important ways different. He said in evidence that he therefore made an informal approach at that time to Mr Campbell for assistance and discussed the matter with him. He asked for additional copies of the DEFRA application material (which he said, he was given freely and without conditions) and used inter alia that to draft SWRDA I. I hasten to add that apart from the matter I have identified in para. 27 above, the content of SWRDA I is quite different from that of the Booklet. However in the SWRDA I application considerable stress was given to the phrase 'Devonshire Flavour' (and interestingly, 'Devonshire flavour' as well).
35. There was a dispute between Mr Campbell and Mr Smye over this evidence, Mr Campbell denying ever even receiving such a request for assistance let alone giving it. Mr Smye stressed that this had been an entirely informal request and stuck to his written evidence under cross-examination.
36. I am inclined to give Mr Smye the benefit of the doubt on this issue though as I will show, I do not think it matters. Curiously, as Mr Campbell noted, in spite of a plethora of e-mails and attendance notes covering much in the case, there is nothing covering Mr Smye's request. However I must also bear in mind several other matters. First, the addition of the DEVONSHIRE FLAVOUR™ (and 'df' initials) to the slides used in SWRDA I cannot have happened much before 23 November 2001, being the date of application for registration of the Trade Mark. That material must have come from Mr Campbell and time wise, it fits in with the request from Mr Hutchcroft for a draft application, the date of filing of the application for the Trade Mark (see below) and the filing date of the SWRDA I application on 30 November 2001. In addition, as I shall show, when in January 2002 Mr Campbell was later again asked for the DEFRA application documents in electronic form in order to prepare a revised SWRDA application (so-called SWRDA II), he willingly sent the material required. I am however sure that by mid-November 2001, Mr Campbell was aware of the existence of SWRDA as a potential alternative (or additional) source of funding for the type of project in which he was interested and that DCC were actually in touch with SWRDA for that purpose.
37. On 22 November 2001, Mr Campbell informed Mr Smye by e-mail that he had applied to register DEVONSHIRE FLAVOUR as a trade mark^[14]. It was not however suggested that by the time the draft copy of SWRDA I had reached Mr Hutchcroft that Mr Smye was aware of the application to register the Trade Mark. I am in fact satisfied that in drafting SWRDA I, Mr Smye did not consider that he was infringing any rights belonging to Mr Campbell generated in connection with their joint DEFRA application. On the contrary, he gave me the impression that he thought what he was doing could complement any DEFRA award
38. In his evidence^[15] Mr Hutchcroft said this about the use of the phrase DEVONSHIRE FLAVOUR in connection with the SWRDA project:

"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

39. A copy of this second SWRDA application is to be found annexed to the Particulars of Claim as Schedule 3(b). Though obviously based on the text of SWRDA I, some changes are at once apparent. First, the title has now become 'Eating out, Eating Local'. Secondly, there are no 'slides' attached. Furthermore all reference to 'Devonshire Flavour' (or Devonshire flavour) have been removed and the third of the passages complained of by Mr Campbell has also been removed. These changes were all made by Mr Hutchcroft alone.
40. It will be recalled that SWRDA I was submitted to SWRDA by Mr Hutchcroft on 30 November 2001. Early in the new year, SWRDA raised some queries with Mr Hutchcroft regarding the application which Mr Hutchcroft circulated to his entire department by e-mail on 4 January 2002. Nonetheless, the Devonshire Flavour project had been (as SWRDA put it):

'Provisionally agreed. [But] Please explain the need and value of the £50,000 sought'.

41. Mr Hutchcroft told me that this prompted him to take another look at the 'Devonshire Flavour' project and as a result, he decided to revise it. This revision became SWRDA II. Mr Hutchcroft gave reasons in evidence for this decision. He was for example, unhappy with the title itself (see §38 above) and wanted to achieve 'a more focussed, achievable and beneficial project'. He therefore reverted to Mr Smye, sharing his thoughts with him and seeking his help to re-draft the application. I accept this evidence and find nothing sinister about this development - as Mr Campbell has insinuated. .
42. The revised application was thus re-submitted to SWRDA in the second week in January 2002 and the funding award in respect of it (and a number of other projects) was announced by SWRDA in a letter dated 18 January 2002 enclosing as Appendix 1 some pages relating to the projects. Appendix 1 contained blank sections which required filling in by DCC. However, in spite of Mr Hutchcroft's change of title which I have mentioned, SWRDA still referred to this award as being for a 'Devonshire Flavour' project. And it was thus announced in the local press as well^[16]. This had unfortunate consequences. Needless to say, Mr Campbell soon got to hear about this award^[17], and after a few months, became very angry indeed. DCC had, he considered, filched his entire project.
43. There was evidence (and argument) about this error. What seems to me to be clear is that a mistake was made initially by SWRDA which was then repeated by others, including DCC's Press Department itself in a press release of February 2, 2002. In cross-examination, Mr Hutchcroft pointed out that New Year 2002 was not only the 'funding season' but that year was a particularly busy one because of the FMD. He remembered that the departments concerned were working 'flat out'. SWRDA's mistake was, he suggested, most likely a 'hang over' from SWRDA I. He also pointed out that when he filled out the blank spaces in Appendix 1 to the SWRDA letter (see above), he corrected the mistake. He said that no one referred to the project thereafter as anything but 'Eating out, Eating local'. This was the stage at which an alleged falsification of documents on the part of DCC and SWRDA took place. I have reviewed the evidence on this matter and find the allegation to be without foundation
44. By March 2002, Mr Campbell submitted a fee note to DCC for nearly £18, 000^[18] and began to threaten DCC with action for alleged breach of his IP rights. At various times thereafter he has written to his MP, to the Chief Executive of DCC, to the Ombudsman, to the District Auditor and to others complaining of how he has been ill-treated. He has sought a judicial review (which was refused) and has made applications to SWRDA under the Freedom of Information Act 2000. The latter yielded documents which were considered at trial and which related mainly to what he regarded as the fraudulent misuse of the Trade Mark by DCC.
45. I have seen the documents obtained from SWRDA under the Act and have carefully considered the evidence on this aspect of the case. Whatever the cause of the error may have been, I believe Mr Campbell's accusations of fraud etc against DCC to be quite without foundation.

Licence/Estoppel?

46. Before going forward, it is again necessary to go back for a moment to the circumstances under which Mr Hutchcroft came to write SWRDA II, since they involved Mr Campbell in a most material respect.
47. What happened was this. As I have said, having decided to revise SWRDA I in early January 2002, Mr Hutchcroft again enlisted the help of Mr Smye. He needed the DEFRA application documents in electronic form for possible use in preparing SWRDA II, he said. Mr Smye felt that he might not have an up to date file on the DEFRA application (see § 25 above) and accordingly asked Mr Campbell by telephone to e-mail the documents to him. He explained to Mr Campbell why he needed them and the same day, by attachments to an e-mail, Mr Campbell sent a set of DEFRA documents to Mr Smye – who passed them on to Mr Hutchcroft. There is again a very marked difference between the parties as to the circumstances surrounding this incident.
48. The documentary evidence is slender^[19] but it does tend to support DCC's account of the matter. What is not in dispute is that both men then agreed that the documents could be used in the SWRDA I application. Where they differ is as to terms, Mr Campbell contending that he imposed two conditions on their use: first that the application should be a joint application and secondly that it should involve funding for a three year project. This is how it is pleaded by Mr Campbell^[20]:

'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^[21] 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.

49. Mr Malynicz made a number of submissions on this development. First, he said that the burden fell to Mr Campbell to prove that these conditions had been imposed. I agree. Next, he said that there was absolutely no contemporaneous evidence to support the existence of such conditions and that what there was, supported DCC's position. Again, I agree. He pointed to the fact that the existence of these alleged conditions emerged only later, Mr Campbell having said nothing about them till late in 2002. He also submitted that in view of the nature of SWRDA awards^[22] a joint application would have been impossible anyway. He submitted that Mr Campbell's case on the so-called conditions was simply untenable.
50. Mr Campbell had little to say in response, leaving the matter as one of credibility for the Court. He also remained adamant that he never gave Mr Smye permission to use the DEFRA document in November 2001.
51. I have no hesitation in preferring the evidence of DCC on this issue. The DEFRA documents were in my view given to Mr Smye freely and without conditions so as to enable DCC to make an application to SWRDA for funding. I believe that Mr Campbell well knew this.
52. In addition, DCC pleaded an estoppel.^[23] . Mr Malynicz said that estoppel applied even if I were to hold that Mr Campbell were to succeed in relation to the events of November 2001 relating to SWRDA I. It was said that where the owner of a right has led another to believe that he will not stand on his legal rights (as Mr Campbell did in 2002) and, knowing and intending the other to act on that belief and the other indeed acts on that belief to his detriment (as DCC did when it went ahead with SWRDA II - as Mr Campbell well knew), the court should hold that the right holder cannot approbate and reprobate in the manner asserted by Mr Campbell. Mr Malynicz cited Cecil Lennox v MGM [1928-35] Macg. Cop. Cas. 453 in support of his argument. Again I consider that the estoppel has been properly raised and would have applied had I found in Mr Campbell's favour regarding the SWRDA I application.

Conclusion on Licence/estoppel

53. In my judgment, all the matters complained of were carried out with the licence or consent of Mr Campbell and therefore his action under both heads must fail in limine. The action will therefore be dismissed,
54. In view however of the arguments put forward by the parties in relation to copyright and trade mark infringement, I shall go on briefly to consider these issues. I shall first consider copyright infringement. I shall then turn to the Trade Mark case on its own, that is, the infringement allegations and the counterclaim for revocation together.

Copyright Infringement

Ownership

55. In its defence, DCC put in issue the ownership of the copyright materials relied on . At trial the issue centred on the authorship of the PowerPoint slides and the question of the extract from Farmers' Weekly (see above).

.

56. Concerning the slides, a question arose as to whether these were created by Mr Campbell's independent collaborator (a Mr le Fleming who had a more powerful computer) or by Mr Campbell himself. I have re-visited the evidence on this topic and though it is not very clear, I find that DCC have not satisfied me on this score. I accept that Mr Campbell is the author of the works in issue. With regard to the extract from Farmers' Weekly, this largely consists of a verbatim extract and a short précis. Neither of this can realistically be called Mr Campbell's work and I shall therefore exclude this paragraph from further consideration.

Was a substantial part copied?

57. Section 16(3) CDPA '88 refers to the acts restricted by copyright being in relation to 'the work as a whole or any substantial part of it.' Mr Malynicz drew my attention to the classic authorities on this subject: Ladbroke v Wm Hill [1964] 1 WLR 273 at 276 ('quality more important than quantity') and more recently, Designers' Guild v Russell Williams [2000] 1 WLR 2416 at 2431. From the latter I have extracted a statement of the correct approach to 'substantial part' (per Lord Scott):

"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^[24]

58. First, turning to the present case, Mr Campbell is plainly in error in concentrating only on the three short, excerpted passages referred to in the pleadings (see §27 above). One has to look at the Booklet as a whole when the issue is whether a 'substantial part' of a literary work has been wrongly taken – arguably excluding the slide section. In my view, these three passages form but a minor part of the 40-50 or so pages of the Booklet. Furthermore, one must then enquire how important these passages are in relation to the copyright work as a whole? Mr Campbell was cross-examined about this^[25] . I have also re-read the Booklet and performed an assessment of my own. Not surprisingly, on any view, the most important part of the work related to financial matters - and none of this was taken. As a result, both from the qualitative and quantitative point of view, I consider that what was taken was emphatically not a substantial part of the Booklet.
59. As for the PowerPoint slides, Mr Malynicz points out that only two out of 32 slides were used for SWRDA I (and none were used in SWRDA II). In this case I am prepared to consider each slide as a discrete artistic work. Visual impression and assessment are thus important. I have already described the changes made to the slides pleaded (i.e. those used in the DEFRA application) and the slides unlawfully used (according to Mr Campbell) in the slide used for the SWRDA I application:§§29-30. I find that a substantial part of slide 11 ('Supply Chain') was taken by Mr Smye in the SWRDA I application. The impact of the more substantial differences between the pleaded version of slide 10 ('Concept') and the Modified Concept slide used in SWRDA I, is rather more difficult to assess. The development is much more marked. I am therefore not prepared to hold that a substantial part of the copyright in that slide was taken by DCC.
60. In my judgment, absent Mr Campbell's consent or licence to use the copyright works in issue, there has been infringement of one of the PowerPoint slides ('Supply Chain') in the making of copies thereof by DCC for the SWRDA I application.
61. In the light of my findings on the serious allegations raised by Mr Campbell of fraud, falsification of documents etc, I would not in any event be disposed to order the payment of additional damages under CDPA '88, s. 97(2).

Trade mark matters

62. I have already set out details of the Trade Mark in §24 above. There are two issues: infringement and validity under this head. I shall deal first with infringement but before doing so would say this: Mr Campbell was quite unfamiliar with trade mark matters and like other litigants in this field who come to this court, seemed surprised that the UKIPO could register marks as allegedly invalid as DEVONSHIRE FLAVOUR for food and drinks.

Infringement

63. The use of the Trade Mark of which Mr Campbell complains has been sufficiently described already. DCC made no other use of it than in their SWRDA I funding application. Mr Malynicz first referred me to TMA '94, sections 9 and 10. He broadly submitted that what DCC had done was not a commercial use of the Trade Mark in any accepted sense of the term and that there was therefore no liability on the part of DCC for trade mark infringement – even if the Trade Mark were to be valid. He cited in support the Céline Trade Mark case in the ECJ [2007] ETMR 80 and set out (correctly in my view) each of the requirements for trade mark infringement to be established as follows:

(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.

64. I need not I think, go into the law relating to each of these requirements in any detail. Mr Malynicz drew my attention inter alia to Travellex v Commission [2003] ETMR 90 and Hölterhof v Frieieselben [2002] ETMR 79.
65. The use complained of was not in my view, use in the course of trade.The Trade Mark was used only on paper in the course of an application for funding. The Mark was not affixed to goods or used in relation to the services for which it was registered. Licence or consent has already been considered in general under copyright^[26]. In any event, Mr Campbell's alleged conditions would seem to be inapplicable when it comes to trade mark use. As for the other criteria, the facts are self-evidently against there being infringement of the Trade Mark.
66. Even if the Trade Mark was valid, which (see below) it is not, there has been no infringement.

Validity

67. DCC counterclaims for a declaration that the Trade Mark is invalid. For this, it relies upon the following sections of TMA '94: s 47(1) and (6) coupled with ss. 3(1)(b), 3(1)(c)^[27] and in addition, s.39. Of these, the ground epitomised by s. 3(1)(c) is the most important.
68. The relevant parts of s 3 provide as follows:

'3 (1) The following shall not be registered

(a)….

(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. '

69. I need only consider the s. 3(1)(c) objection since in my view, the Trade Mark is hopelessly invalid under that provision alone. But first I should record some facts which are relevant to this part of the trade mark enquiry.
70. First, save for its use in the making of the funding applications which I have already described, the Mark has never been used. Secondly, Mr Campbell volunteered evidence as to how he came to choose the mark which I think, is most relevant. 'Devonshire Flavour' was, he said, the title of a book whose full title is 'Devonshire Flavour. A cookery book with a difference' by Elizabeth Lothian, David & Charles, Newton Abbot (1989)^[28]. The Amazon description on the internet says that it contains over 250 recipes '…evoking the flavour of Devonshire food'. Mr Campbell brought a copy of the book to court.
71. Next, a section of the DEFRA application Booklet itself is devoted to recipes all of which begin with the word 'Devonshire' Thus: 'Devonshire diced organic lamb casserole…' In addition, I have already recorded how Mr Smye used the Mark ('Devonshire flavour' ) and of what Mr Hutchcroft thought about it (§38).
72. In my view there could hardly be a better phrase to describe, evoke and exalt the excellence of food, drink and the services allied to the production and consumption of food and drink in Devonshire, than the Trade Mark. As such it falls squarely within most of the proscribed indications in TMA '94, s. 3(1)(c). The Trade Mark is invalid .

Amendment during prosecution: TMA '94, s. 39(2)

73. A quite different attack on validity was made under TMA '94 s,. 39(2) in view of the fact that the Trade Mark had been amended during prosecution. The section provides as follows:

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.

74. I have mentioned that Mr Michael Brown, Mr Campbell's trade mark attorney, gave evidence of the prosecution of the Mark. Originally Mr Campbell's application was to register three trade marks, the applications being for a stylised version of e.g. the words 'Devonshire Flavour'^[29]. Mr Brown explained that the Registrar refused to register the three marks originally applied for on the basis that they were not a series within the meaning of TMA '94, s.41(2). In response, Mr Brown deleted two of the marks and let DEVONSHIRE FLOVOUR go forward to registration as an upper case word. This amendment was effected on 24 January 2002 –after the SWRDA I application had been made. Mr Malynicz submitted (rightly in my view) that Mr Campbell cannot rely on the Trade Mark Rules, 2000, rule 21(3) (as amended) because that only allows deletion of a mark within a series. According to the examiner, this application did not comprise a series and the amendment he submitted, cannot fall within the rather narrow confines of TMA '94, s 39(2).
75. Overall, I agree with Mr Malynicz: in the light of the s. 39(2) objection, as it stands, the mark is either invalid or must take its date of registration as being 24 January 2002, that is, after the alleged infringement. In either case, Mr Campbell cannot make use of the Trade Mark against DCC
76. Finally Mr Campbell relied on an estoppel against DCC arguing that DCC cannot now challenge validity having themselves used the Trade Mark. In my view, DCC have not used the Mark. I have not fully understood this argument but in any event, regardless of DCC's position, the Court has an inherent discretionary power exercisable in the public interest and sui moto, to declare a trade mark to be invalid. And that in my view, is the case here.

Conclusion.

77. The action will stand dismissed. DCC's counterclaim for a declaration of that the Trade Mark is entirely invalid, succeeds.
78. I shall in due course hear the submissions of the parties regarding the appropriate order to be made in the light of the foregoing and in addition, on the question of costs.

Note 1   South West Regional Development Agency.    [Back]

Note 2   The Department for the Environment, Food and Rural Affairs    [Back]

Note 3   Referred to by day and para: T2/15    [Back]

Note 4   The Application to DEFRA entitled Countryside Flavour contains further details of Hp-c and of Mr Campbell’s background. Mr Campbell said of Hp-c: “[it] has no formal structure.”:T2/13    [Back]

Note 5   It ran from 1998 to 2003.    [Back]

Note 6   T3/16    [Back]

Note 7   See §16 above)    [Back]

Note 8   In cross-examination he even accepted that the application was a bit of a ‘punt’:D2/122-125.    [Back]

Note 9   In what follows, I have not attempted to cite the numerous references from the disclosure.    [Back]

Note 10   T3/47. See also memo Mr Hutchcroft to SWRDA 8 November 2001    [Back]

Note 11   During which time he was told of the application to register the Trade Mark – see below.    [Back]

Note 12   As to which, see §§ 29-30 above.    [Back]

Note 13   Which had by then of course been lodged.    [Back]

Note 14   The application was actually made the following day see above.    [Back]

Note 15   Witness Statement: §7.    [Back]

Note 16   Mid Devon Star, 8 Feb 2002.    [Back]

Note 17   Actually, he was told about it by Mr Smye at a meeting on 6 March 2002    [Back]

Note 18   Which has not been paid.    [Back]

Note 19    A telephone record and Mr Campbell’s e-mail of 7 January 2002. Interestingly, the following day, Mr Campbell emailed a front cover for Mr Smye to use, with the initials ‘Hp-c’ removed. See disclosure bundle, Vol 1, pp 78-79 (“ for your submission”).     [Back]

Note 20   See 1/5/§§10,12    [Back]

Note 21   That is, those I have already described.    [Back]

Note 22   See above. They were (for example) only available to County Councils.    [Back]

Note 23   1/3/§10.4    [Back]

Note 24   Ibid at 2425    [Back]

Note 25   See D2/17,20-22, and 32.    [Back]

Note 26   See T3/206 for Mr Smye’s evidence regarding his use of the Trade Mark in SWRDA I.    [Back]

Note 27   S. 3(1)(d) was also pleaded but not persued.    [Back]

Note 28   X4    [Back]

Note 29   As seen I think, on the two revised PowerPoint slides considered above on copyright infringement.    [Back]