Introduction
1.The second claimant (“CTL”) runs a Cantonese restaurant called “China Tang” at the Dorchester Hotel in Park Lane. The restaurant features opulent decor, apparently redolent of interwar Shanghai. It was opened in 2005 by Sir David Tang, businessman, writer and raconteur, after whom the restaurant is named.2.As of 29 August 2005, the first claimant (“Gnat”) has been the owner of trade mark no. 2,415,093 (“the Trade Mark”) registered in respect of, among other things, “Restaurant services; catering services; cafes; cafeterias; and self-service restaurants” in class 43. It is a series mark in the following form:
3.CTL is licensed by Gnat under the Trade Mark.4.The second defendant (“Mr Gu”) runs a Chinese takeaway in Barrow-in-Furness through the first defendant (“WLE”), of which he is the owner and sole director. WLE started trading in 2009 and has at all times traded under the name “China Tang”. These are images of the shop front and a sample menu:
5.In WLE’s website pages the sign is used in the same ordinary typeface as used for the rest of the script in which the sign appears. I can treat WLE’s sign as being the words “China Tang” as opposed to a stylised version of those words.6.The claimants allege that the defendants have infringed their Trade Mark pursuant to s.10(2) and 10(3) of the Trade Marks Act 1994 (“the 1994 Act”). The claimants also claim goodwill in their restaurant business associated with the “China Tang” name and say that the defendants’ running of their takeaway business under that name constitutes passing off.7.The pleaded Defence includes an assertion of honest concurrent use and there is a Counterclaim for partial revocation of the Trade Mark because of non-use insofar as it is registered for “cafes; cafeterias; and self-service restaurants” (but not restaurant or catering services).8.David Ivison appeared as counsel for the claimants, Charles King for the defendants.