Source: All England Reporter
Publisher Citation: [2007] All ER (D) 221 (Jun)
Neutral Citation: [2007] EWCA Civ 583
Court: Court of Appeal, Civil Division
Judge:

Pill, Longmore and Jacob LJJ

Representation Justin Turner and Miles Copeland (instructed by Clarkslegal LLP) for the claimants.
  Desmond Browne QC and Jonathan Barnes (instructed by DWF) for the defendant.
Judgment Dates: 20 June 2007

Catchwords

Injunction - Interim - Trade mark infringement - Claimants seeking prior restraint order in trade mark infringement proceedings to prevent defendant publishing comparative advertisement disparaging claimants' product - Defendant intending to justify claims in advertisement at trial - Whether prior restraint order should be granted only if claims obviously untruthful and libellous - Whether prior restraint order should be granted only if claimants more likely than not to succeed at trial - , s 12(3).

The Case

Injunction Interim. The rule applicable to defamation or malicious falsehood claims, that no prior restraint orders would be granted where the defendant said that he was going to justify it at the trial of the action unless the statement was obviously untruthful and libellous, was not appropriate to trade mark infringement, even in a case of comparative advertising. Pursuant to s12(3) of the a man who found his trade mark disparaged by a rival trader in a comparative advertisement could obtain a prior restraining order only if he could show that it was more likely than not that the disparagement was wrong and misleading. Unless he could do that, then his rival, both for his commercial interests and in the interests of the public, ought to be free to say that which he honestly believed.

Practice Areas

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