Case No. EWHC-3296-(IPEC)

42. Before dealing with the claims made under s.10(1) to (3) TMA 1994, it is worth identifying the particular acts which Equisafety alleges infringed its trade mark. 43. Equisafety’s pleaded case in this regard referred to “ advertising and selling on the Battle's website an equine clothing range branded with ‘HyVIZ Silva Mercury Reflective’ ” (i.e. with the HVSMR label). That range included a jacket, a gilet and a mobile phone holder as shown in screenshots from Battle's website taken on 6 June 2019. On these screenshots, the main “HyVIZ” name and the HyVIZ and Battle logos are clearly apparent and there are pictures of the relevant product identified as the “HyVIZ Silva Mercury Reflective [Jacket/Gilet/Phone Holder]” (as the case may be). 2 The range of products sold by Battle under the HVSMR label was later extended to include a bridle, a hat band, a leg band and a tail band. This is shown in a screenshot of the Battle's website taken on 9 September 2019 which displays the Battle brand and has individual pictures of the relevant products each of which is identified by its HyVIZ Silva Mercury Reflective label. 3 It also appears that products in Battle’s HVSMR range were packaged and/or bore swing tags with the following branding: 44. On this basis, it is clear that, in general, Battle’s use of the word mercury was as part of the HVSMR label. There are, however, a few occasions when the word appears as part of the shorter label “Silva Mercury” as, for example, on the reverse side of some of the product packaging and in the Hy-Equestrian 2019 sales brochure which are included in exhibit RMD1 to Mr Dewey’s second witness statement. 45. There is no evidence of any use by Battle of the word mercury by itself in relation to these products.