Case No. EWHC-3296-(IPEC)

95. The final issue is whether Mr Dewey is jointly liable for the actions of Battle which I have found constituted infringements of trade mark and passing off. 96. There is no dispute about the relevant law which was summarised by Lord Toulson in Fish & Fish v Sea Shepherd UK [2015] AC 1229 at [21] as follows: “D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort. I do not consider it necessary or desirable to gloss the principle further.” 97. Equisafety’s case is that Mr Dewey is Battle’s managing director and a shareholder in it, that he is its controlling mind and is heavily involved in its activities with overall responsibility for various departments. Ms Fletcher believes that Mr Dewey is likely to have played a role in the matters complained of. In this regard she points to the fact that he had been actively involved with her in 2009 to 2010 regarding a product design that he asked her to create for Battle and to the fact that he attended trade shows at which Battle was marketing its HVSMR labelled products and to the fact that he actively liaises with Battle’s customers. 98. In my judgment, this evidence does not satisfy the test for joint liability as set out in Fish . It is true that Mr Dewey is Battle’s managing director and, on any basis, a significant shareholder in the company. However, Battle is a reasonably large company with 140 employees and there must be acts which it does but for which he cannot be held responsible. Whatever the position in relation to Mr Dewey’s involvement in the development of a product in 2009, there is no evidence to show that he was actively involved in decisions about new product ranges in 2018 either generally or specifically in relation to the products in issue here. Indeed, Battle’s internal emails after receiving Ms Fletcher’s email of 6 June 2019 suggest that Battle’s use of the word mercury was not something of which Mr Dewey had previously been aware and, given the scale of its operations, this is not as surprising as it might at first appear. Whilst the same cannot be said of the position after June 2019, there is still no evidence to link Mr Dewey personally to Battle’s continued uses of the word Mercury about which Equisafety complains.