Case No. IP-2020-000081

102.The Claimants’ case in passing off was based on the usual three requirements: establishing goodwill, a misrepresentation by UEPM through the use of its Urban Evolution sign and consequent damage to the Claimants. There was no attempt or need to pin down whether any goodwill was owned by one or other of the Claimants so I will continue to refer to them collectively.103.I am satisfied by the evidence I have referred to in relation to the Claimants’ reputation, in the context of s.10(3) of the 1994 Act, that at the relevant date the Claimants owned goodwill in their business which was associated with the trading name Urbanbubble. The relevant date is the same, see Starbucks (HK) Ltd v British Sky Broadcasting Group plc [2015] UKSC 31, at [16].104.I take the view that the evidence discussed above in relation to the likelihood of confusion under s.10(2) of the 1994 Act does not support the Claimants’ case that use of the Urban Evolution sign constituted a misrepresentation on the part of UEPM. Applying the test relevant to passing off, the evidence indicates that at most, members of the relevant public thought that there was a likely possibility of a connection between the Claimants and UEPM, but this never coalesced into a fully-formed belief or assumption. It was common ground that the relevant public were investors and developers of the type who fell into one or other category of average consumer discussed above. The view of many members of the relevant public did not even go that far.105.The circumstance of UEPM taking over the same role as property manager in the same building on the instruction of the same developer was an important factor in the view taken by Mr Whyte and Mr Peirson of a likely possibility of a connection in the course of trade.106.There was a pleaded case of deliberate passing off on the part of UEPM but this was not put to the Defendants’ witnesses and was not pursued in closing.107.Since there was no misrepresentation, there can have been no damage. The Claimants’ case of passing off does not succeed.