Case No. EWHC-3296-(IPEC)

89. For the reasons set out above, I find that Battle’s actions constituted an infringement under s.10(2) and s.10(3) of the Trade Marks Act 1994. 90. I should note that in reaching these conclusions, I have not been influenced by Ms. Fletcher's inadmissible evidence regarding a Facebook survey that she conducted and which was said to evidence confusion. Similarly, I have not been influenced by Ms Fletcher’s assertion that Battle has a reputation for copying the designs of other companies, or by the comments apparently made in this regard by certain employees or former employees of Battle. Without direct evidence from any witness from those other companies or from any of those employees or past employees, I am not in a position to make any findings in relation to this assertion. 91. Finally, with regard to the trade mark issues, the point was made by Equisafety that some HVSMR products continued to be available via its stockists even after Battle had undertaken to stop using the word mercury in relation to its products. Understandably this led Equisafety to believe that Battle was not abiding by its undertaking. However, I accept Battle’s case that it had taken extensive steps to try to have references to mercury removed from its products and that ultimately it had no right to control the activities of its stockists. In any event, this seems to me to be something of a red herring. Battle may not be liable for the separate marketing and sales activities of its stockists, but it is liable for using the word by affixing it to the packaging of those goods in the first place and for exposing and offering them for sale to and via those stockists (see s.10(4) of the Trade Marks Act 1994).