Promotion
”, and, in particular:“C. Local Expenditures. In addition to the General Advertising Fees, you are obliged to spend not less than Two Hundred and Fifty pounds (£250) per month set out the Schedule on local advertising and promotions approved by us (the ‘Local Advertising Fees’). We reserve the right to establish a program requiring that all or some of our franchisees spend Local Advertising Fees on specific approved local advertising projects (the ‘Program’). In areas in which Programs have been established prior to the opening of your Anytime Fitness Club, you must participate in the Program upon opening of your Anytime Fitness Club. In areas where we have not established a Program before you open your Anytime Fitness Club, we may do so upon written notice, at which time you will start contributing the Local Advertising Fees to the Program. We may, at our option, require you to submit to us for our prior approval any advertising you propose to use for the promotion of your Anytime Fitness Club.”It is at least clear from this term that Anytime UK had the option to require Tribe to submit advertising for the promotion of Tribe’s club in Stratford. However, Ms West says: “I am instructed that the First Defendant did not exercise their option for Tribe Health Clubs to submit any advertising that proposed to use for approval by the First Defendant. The First Defendant only became aware of the advertisement on 4 June 2021.” 20Mrs Evans drew my attention to a different section of the franchise agreement between Anytime UK and Tribe, namely section 3, headed “Marks and Copyrights” and, under that, subsections C and D:“C. Use. Your right to use and identify with the Marks and System applies only to the Franchised Location, and exists concurrently with the term of this Agreement and only so long as you are in complete compliance with the quality standards determined by us and the Master Franchisor. You will have the right to use the Marks and System only in the manner prescribed, directed and approved by us in writing. You will not have or acquire any rights in any of the Marks or System other than the right of use as governed by this Agreement. You may not authorise others to use or reproduce our Marks without our prior written consent. Your use of the Marks and any resulting goodwill will be to the exclusive benefit of the Master Franchisor. If, in our judgment, your conduct infringes upon or demeans the goodwill, standards of uniformity or quality, or business standing associated with the Marks or the System, you will immediately, upon written notice from us, modify your use of the Marks and the System in the manner prescribed by us in writing. You will not during or after the term of this Agreement do anything directly or indirectly which would disparage, infringe upon, harm, or contest the Master Franchisor’s or our rights in, the Marks or System. D. Promotion21It seems to me that those subsections C and D of section 3 are primarily directed to the way in which Tribe is entitled to present the Anytime Fitness name to the public. Subject to the words “Anytime Fitness” being represented in a manner approved of by Anytime UK, those subsections do not deal with the advertisements that were paid for or arranged for by Tribe. The advertisements themselves are dealt with in section 6C quoted above. As Ms Messenger pointed out, the advertisement complained of does not use the words “Anytime Fitness”. They do appear as part of the internet address but not as part of the advertisement itself. Over and above this, I have no reason to doubt the accuracy of the evidence of Ms West (albeit evidence on instructions) that Tribe never submitted any of its proposed advertising to Anytime UK. On that basis, it seems to me that there is not even an arguable ground for alleging that Anytime UK is jointly liable for infringement of the claimants’ trademark by reason of the Google advertisement complained of. 22The claimants have an alternative argument, which is that Anytime UK is vicariously liable for Tribe’s active infringement because Tribe acted as Anytime UK’s agent when it arranged for the Google advertisement complained of. There is nothing in the franchise agreement which suggests that Tribe could enter into advertising agreements or any other kind of agreement such as to bind Anytime UK, or that Tribe ever purported to do so. I can see no ground for supposing, even arguably, that Tribe acted as Anytime UK’s agent. In the result, I will strike out the claimants’ claim against Anytime UK. 23I would say to Mrs Evans and Mr Evans, since you are not professionally represented, that if in due course you have good reason -- I do not mean a fanciful reason, but a good reason -- to suppose that what Ms West said on instructions is not true, which would be a serious matter, then that is something you could raise with the court and there may be cause to rejoin Anytime UK. But as matters stand, your complaint goes forward only as against Tribe. L A T E R24Even though costs of Anytime UK have not been itemised in the way they should have been, I will make an award of costs in their favour in the sum of £7,000.