Case No. EWHC-1798-(IPEC)

92.While noting that ultimately the 1994 Agreements might be irrelevant, Mr Smith submitted that those agreements were valid and that under them Mr Clarke and Mr Richardson had assigned to AWEL any rights they may have had from their previous involvement with the Rubettes.93.Mr Smith submitted that it was common ground that by 1994 the 1976 Company owed money to its accountants and that the accountants were pursuing band members individually for payment. His submission was that Mr Williams reached an agreement with all of those who had an interest in the 1976 Company under which they each agreed to assign any rights they had in the 1976 Company to AWEL in return for Mr Williams’ willingness to pay the debts of that company. Mr Smith submitted that this included all the goodwill previously owned by the 1976 Company.1983 – 200394.Mr Smith submitted that AWEL was responsible for all trading under the name ‘the Rubettes’ from 1983 onwards. He relied on evidence from both Mr Williams and Mr Clarke that from 1983 AWEL undertook all the administrative arrangements, paid any expenses, was paid all the income, and paid everyone performing with the band a performance or ‘session’ fee. He submitted that this established that AWEL was the trading entity for the band and that Mr Williams had strategic control of that entity.95.Mr Smith submits that it is therefore clear that AWEL has goodwill associated with the name ‘the Rubettes’ and that, even if the 1994 Agreements did not transfer goodwill owned by the 1976 Company or any previous goodwill, AWEL has accrued independent goodwill through its trading from 1983 onwards.96.The principles set out by Laddie J at [25]-[26] of Byford v Oliver quoted above as applying to partnerships were argued by Mr Smith to apply equally, if not more, to bands which trade as limited companies. In his submission, this means that if one company owns the goodwill associated with a band name and someone else starts to perform and to trade under the same name, the company owning the rights in the first band may be able to sue the second band for passing off (subject to defences of e.g. abandonment of goodwill, acquiescence and so on as identified by Laddie J), but the second band (in whatever legal form it operates) would generate separate rights of goodwill. Mr Smith submitted that this means that AWEL has accrued goodwill in ‘the Rubettes’ since at least 1983 and that this has continued though the various iterations of the band through which AWEL has traded.2003 – 201897.Mr Smith submits that the only difference was that, following the 2002 Settlement Agreement, AWEL agreed that it would use the suffix ‘featuring Alan Williams’.98.Mr Smith notes that this agreement is not pleaded to have made any difference to the legal position and submits that it does not in any event make any difference because:•first, a private agreement of this nature does not affect the underlying position as to goodwill; and•secondly, the Defendants have positively pleaded that AWEL has continued to trade as ‘the Rubettes’ on some occasions.