Patents County Court gives non-binding opinion

29-03-2012 11:37

In a recent case Weight Watchers (UK) Limited and others v Love Bites Limited and others [2012] EWPCC 11, HHJ Birss QC gave a non-binding opinion of the trade mark infringement case brought by Weight Watchers against Love Bites at an early procedural hearing.

Weight Watchers is well known for its weight loss classes and products sold under the WEIGHT WATCHERS mark.  The defendant is a company, Love Bites, which started using the mark WAIST WATCHERS in 2006 to sell sandwiches.  After initial correspondence, Weight Watchers decided that the scope of activity of the defendant was not significant enough to deal with further at that stage.  However in August 2010, the defendant applied to register its WAIST WATCHERS mark as a trade mark and Weight Watchers considered the problem to be more significant.

Weight Watchers therefore brought trade mark infringement proceedings under two separate sections of the Trade Marks Act 1994.

The case came before HHJ Birss QC in the Patents County Court in February 2012 for a Case Management Conference (“CMC”).  A CMC is a hearing, after the parties’ cases have been served on each other, where the Court considers the future conduct of the case and whether there are real issues between the parties.  In this case, the Judge asked the parties if they would like him to give a non-binding opinion at the CMC as to the merits of the case.  It was stressed that this is not binding on the parties or the Court as was only given provided both parties agreed to it.  It is something that has been suggested will be done in the patents County Court and HHJ Birss QC commented that this seemed like the kind of case where this kind of opinion would be appropriate.

In his view, he stated that, in his initial view and at the early stage in proceedings on the papers before him, there was a “strong case” that the defendants are likely to be found to be infringing the Claimant’s registered marks and that the defendants registered marks would be found to be invalid.  He did stress that this was his preliminary view.

This case is therefore notable as it shows that the Patents County Court is willing to give this kind of non-binding opinions which may have the affect of narrowing the issues between the parties, and therefore the costs, or even lead to settlement of the cases.

If you would like any more information on this topic, please contact Emma Hayward.

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