Case No. IP-2014-000051

124.In this case I have no direct evidence of confusion from members of the public. Oran relies on evidence of actual confusion set out in the first witness statements of Derek Duffy and John Dooley and the witness statement of Christina Lines. All of the evidence before me is either documentary evidence of communications from and to potential or actual consumers or suppliers or provided through Oran’s witnesses, who are employees and directors of Oran. Some of that is hearsay or double hearsay. I have no direct evidence from any potential or actual consumers or suppliers as to whether they were confused at all, and if they were, whether that confusion was caused by the similarity between mark and sign and identity of the goods and services for which the mark is registered and in relation to which the sign has been used, and the Defendants have been unable to subject any of them to cross-examination. I have been told why some of them were unable to be called, but it is unclear why none were called. Submissions and evaluation 125.Mr Harbottle for the Defendants reminds me that I am concerned with the average consumer, and cautions me that the confusion of others who are not consumers – including suppliers, employees working in the accounts department of customers with no input in procuring goods and services, or counsel and witnesses in this courtroom – may have some relevance as part of the overall context of the disputed use, but no further. I accept that. I remind myself that the question is whether there is a likelihood of confusion on the part of the public because the sign is the same as or similar to the registered mark and is used in relation to goods identical with or similar to those for which the mark is registered. This question must be considered from the perspective of the average consumer who is reasonably well informed and reasonably observant and circumspect. 126.The evidence of actual confusion relied on by Oran falls into a number of categories. I refer to some but not all of the examples before me:i)Evidence of actual confusion of potential consumers:a)May 2013, Liam Friel, seeking a price for flooring on an Irish development, emailed Oranmore instead, which replied “this is the UK company” and directed him to Oran. Oran relies on this as an example of an actual consumer being actually confused because of the similarity between Oran and Oranmore. Mr Harbottle for the Defendants submits that I cannot be sure, without hearing from Mr Friel, whether he emailed Oranmore on purpose, or because he was confused between Oranmore and Oran, and if the latter, what caused that confusion. I accept that. However, given that Mr Friel and the development were based in Ireland and there is no obvious reason why he would seek a supplier in Norfolk, and given that Mr Friel did not continue to deal with Oranmore but allowed himself to be redirected to Oran, I find it a fair inference that he had been confused between the two companies and I allow it some probative value;b)10 September 2014, Henry Hathaway of Toureen Group Ltd contacted Oran by telephone and informed Christina Lines that he had been led to believe, by Oranmore, that it was ‘part of Oran’. Mrs Lines made what she described as a contemporaneous note of the conversation immediately after the phone call, which said “He phoned looking for Sean Sharkey’s contact number and was put through to me. He dealt with Sean when he was working for Oran… he was surprised to learn that Oran and Oranmore were two separate companies. He said that he has dealt with Sean since Oranmore started up and was very clear that he was specifically led to believe by Oranmore that the two companies were one and the same, and he believed he was dealing with us”. In cross-examination she confirmed that she didn’t ask him to explain how he had come to think they were connected, or how he had been led to believe they were ‘one and the same’, as she didn’t want to talk about the dispute between Oran and Oranmore with a customer. Mrs Lines’ evidence was that she had called Mr Hathaway to see if he would appear as a witness in this case but he didn’t want to get involved. Ross Melville’s evidence is that the only dealings Oranmore had with Mr Hathaway were with Sean Sharkey, some time after this call, in June 2015. His evidence was not challenged in cross-examination. Accordingly, Mr Harbottle submits that it is improbable that Mr Hathaway said what Mrs Lines’ note reports, and asks me to find that the note is not sufficiently accurate to rely on. I do not make that finding. It is inherently implausible, in my judgment, that Mr Hathaway would phone Oran looking for Sean Sharkey if he had never had any dealings with him before, or that he would raise the issue of confusion between the two companies unless he was actually confused. In any event, I find Mrs Lines to be a credible and reliable witness and so I accept Mrs Lines’ evidence that the note she made was contemporaneous and therefore likely to be accurate. The only alternative is that Mrs Lines fabricated this conversation with someone who, coincidentally, did deal with Sean Sharkey at Oranmore some months later. That has suggestion has not been made by the Defendants and seems equally implausible. Accordingly it seems more likely than not that Ross Melville is mistaken that Sean Sharkey had not dealt with Mr Hathaway for Oranmore before June 2015. Sean Sharkey was not cross-examined on this point as his evidence was closely limited as to subject matter not including this. Subject to the caveats that I do not know whether and how the confusion arose, I find that I cannot disregard this evidence and I do give it some probative weight.c)February 2014, an agent for McCarthy & Stone (Developments) Ltd, when investigating a faulty access link to an online platform for tender submissions, questioned whether Oran and Oranmore were ‘one company’. It is clear from Christina Lines’ evidence and the documentary evidence of an exchange of emails, that both Oranmore and Oran were registered to McCarthy & Stone’s tender platform as two separate companies under two separate email addresses. The employee who invited participation in the tender, when told that Oran was having difficulties logging in to the platform, noted the two registrations and two email addresses and questioned whether Oran Precast and Oranmore Precast Ltd were the same company. Mr Harbottle submits this is not sufficient to show evidence of actual confusion but concedes that it may give cause to wonder. I disagree and do consider this evidence to be quite powerful. In my judgment it shows an actual consumer in the process of inviting and managing tenders, aware of Oran and Oranmore as suppliers of identical or similar goods, with sight of both the Registered Mark and the ORANMORE PRECAST Sign, being confused by whether Oran and Oranmore are a single company. I give it significant weight.ii)iii)Customers contacting Oran asking for details of its UK office when it did not have one: March 2013, Mr Mury of Danimore Construction. Oran submits that Mr Mury must have been referring to Oranmore because Oran did not have a UK office at that point. I am unconvinced. Oran previously had a UK office and I heard some evidence that in fact its virtual office facility in the UK was still running at this time, despite no payments being made to it. Without hearing from Mr Mury I am not prepared to draw an inference of confusion at all, let alone an inference as to how any such confusion might have arisen. 127.Oran also relies on instances of ‘wrong way round’ confusion of which the following are examples:i)Potential consumers getting in touch with Oran in the mistaken belief that they are Oranmore, or having dealt with Oranmore previously, thinking they are the same company: Mr Hayes of O’Halloran & O’Brien Limited – quote previously provided by Oranmore for the supply of precast stairs, sent an email to Oran asking it to tender for twinwall. Mr Harbottle for the Defendants accepts this as an example of a consumer being confused about who he received a quote from, but suggests that shows he is not paying the kind of attention the court should expect from the average consumer. I cannot draw that inference. I could equally draw the inference that he represents the average consumer showing an average level of attention but nonetheless being confused. Again, subject to the caveats that I cannot know without asking Mr Hayes what caused his confusion, I cannot disregard this evidence and I give it some weight; ii)Evidence of confusion of suppliers and potential suppliers to Oranmore: May 2012, Mr Bayford of Anglian Doors writing to Oran saying “I understand that Oran has taken over” the Weeting facility of Oranmore, and seeking a contract to maintain the doors. Mr Harbottle submits that it is not clear how Mr Bayford formed that impression, and reminds me that Richard Burke accepted that he had given Mr Bayford his contact details some months earlier, at a time when Oran was carrying out due diligence at the Weeting facility. Mr Moody-Stuart submits that he must have considered who took over the plant and seeing Oranmore assumed it was Oran. I cannot draw this inference on the information before me. He could equally simply have heard that the plant had been taken over and assumed that the new lessee was Oran, who had recently been carrying out due diligence into it. I find this example has little probative value. Conclusion 128.Taking all of these examples into account, and standing back and considering them overall, although some of the evidence upon which Oran relies is of limited or no probative value, I consider that there are enough examples of sufficient weight to give positive support to Oran’s case that the identity of the goods and services provided by Oran and Oranmore and the similarity between the Registered Mark and the Oranmore Signs (with or without the First Defendant’s Device) have caused a number of potential and actual consumers to believe either that there is an economic connection between Oran and Oranmore or that they are the same undertaking.