Case No. IP-2015-000152

[2002] EMLR 568).97.Mr Muir Wood submits that even if the court considers that the Defendant was trading its Product from the Listings as early as July 2012, the evidence shows that: i)the Second Claimant was selling from one or more Listings using the Sign for over a year by then; it had sold over 700 flagpoles by July 2012; ii)as Mr Coles accepted in evidence, by July 2012 the Second Claimant had garnered a significant number of positive customer reviews on the Listings, which were written after the flagpoles had been received with the Sign upon the packaging and instruction leaflets; iii)by July 2012 the Second Claimant had also achieved repeat sales from customers who had seen the Sign upon the packaging and instruction leaflets of their previous flagpole purchases; iv)Mr Coles accepted that at the time the Defendants began selling Product using the Listings, those Listings were the top listings for flagpoles on Amazon. 98.I accept all of those submissions and reject Mr Small’s submission that no goodwill attached to the Sign ‘Design Elements’ as it was not used by the Claimants in the Listings, which instead used the sign ‘DesignElements’. I consider the difference between them to be insignificant. I asked Mr Small where the goodwill from all of these sales and positive reviews had accrued if not to the Claimants associated with the Sign, and he was unable to suggest an alternative. I am satisfied that the goodwill did accrue to the Claimants for the reasons Mr Muir Wood gives. Issue (vi) - Has the Defendant used the Sign in a manner which constitutes a misrepresentation? 99.The test is that in the Jif Lemon case, per Lord Oliver at paragraph 407: “… is it on the balance of probabilities likely that, if the appellants were not restrained as they have been, a substantial number of members of the public will be misled into purchasing the defendants’ product in the belief that it is the respondents’ product?”100.I have no doubt that they were. The Listings state that the 20ft Aluminium Flagpoles the consumers are considering purchasing are ‘by DesignElements’. If they click into the further information section, they will be told they are considering purchasing a flagpole manufactured by DesignElements. The photograph on the listing is of a DesignElements flagpole, which I remind myself is materially different in design to that of the Product, although it is not clear if those differences are visible from the photograph. Those potential consumers, when they clicked to buy the Product and became actual consumers, must have assumed that they were buying, and would receive, a DesignElements flagpole. They did not. I am satisfied that use of the Listing to sell the Product is a misrepresentation by the Defendant amounting to a deception. Issue (vii) – Have the Claimants suffered damage as a consequence of any misrepresentation by the Defendants? 101.Unusually, in this case I can be satisfied on the balance of probabilities that almost every sale of the Defendant’s Product from a Listing was a sale which would otherwise have gone to the Second Claimant. Of course I cannot be certain of every sale, as the Defendant had undercut the Second Claimant somewhat in price and so it is possible that some of those customers would have decided not to purchase at the higher price, albeit I have no evidence of that. However it is sufficient for me to be satisfied that the Claimants have suffered damage. Accordingly I am satisfied that in selling Product from the Listings before 18 February 2013, the Defendant has passed off its goods, not being goods of the Claimants, as goods of the Claimants.