Introduction
1.The Claimant (“BG”) is a company in the burger restaurant business. It started in September 2012 as a restaurant run by the brothers Alexander and Oliver Platzl in Leonding, Austria. At that time the business traded under the name ‘Burgers’. It expanded and in October 2014 the trading name was changed to ‘Burgerista’. There are now eighteen restaurants in the chain, nine in Austria and nine in Germany.2.BG is the proprietor of EU Trade Mark No. 013318209 for the word BURGERISTA (“the Trade Mark”) registered as of 1 October 2014 for, among other things, “Provision of food and drink; Restaurants, Canteens and Bars” in Class 43.3.The fourth defendant (“UPL”) entered the burger restaurant business in September 2015 by opening its first branch in Shepherd’s Bush. On 6 April 2015 UPL had entered into a franchise agreement with a Hong Kong company called Burgista Bros Ltd. UPL’s restaurant was the first in Europe to be franchised. The agreement stated that UPL had the exclusive right to use the ‘Burgista Bros’ name for up to 20 restaurants, each of which would be allotted a territory surrounding the restaurant in which UPL would have the exclusive right to use the sign ‘Burgista’. By the time of the trial UPL had four franchised restaurants in London, including a branch in Piccadilly.4.On 26 October 2015 BG started this action alleging infringement of the Trade Mark.5.BG obtained a judgment in default against the First to Third and Fifth Defendants, which and who have played no further part in the proceedings. The Sixth Defendant (“Mr Khetriyan”) is the sole director and shareholder of UPL. Hereafter “the Defendants” will mean only the Fourth and Sixth Defendants. It was admitted by the Defendants that if UPL is liable for infringement of the Trade Mark, Mr Khetriyan is liable as a joint tortfeasor.6.BG relied on art.9(2)(b) and (c) of Regulation (EC) 207/2009 as amended by Regulation (EU) 2015/2524 (“the Regulation”). It does not ask for damages or an account of profits, but seeks an injunction to restrain further use of the Burgista sign and related relief.7.The Defendants have counterclaimed for a declaration that the Trade Mark is invalid pursuant to arts.52(1)(a) and 7(1)(c) of the Regulation.