Case No. EWHC-1798-(IPEC)

218.There is no dispute that the UK TM was applied for on 24 October 2018.219.Mr Clarke’s written evidence is that the formation of his band began at latest during the summer of 2018. This is corroborated by Mr Etherington’s written evidence that he was asked shortly after July 2018 by Mr Clarke and Mr Richardson if he would join them in a band which was not the Claimants’ band.220.There is some dispute in the evidence whether Mr Clarke (or any of the other Defendants) told Mr Williams about the formation of the new band.221.Mr Williams’ initial evidence was that the Defendants had asked him whether they could continue as ‘their own Rubettes’ and that he had said they could not.222.The Amended Defence denies that the Defendants made any such request, denies that Mr Williams said he would return for future concerts with the band, and asserts that Mr Williams told the Defendants that he was disbanding the band.223.Mr Clarke’s first witness statement says that “At some stage between April and July 2018, it is my understanding that John told Alan that John, Steve and I would continue to perform as the Rubettes without him.” This was not corroborated by the written evidence of Mr Richardson. Mr Richardson’s oral evidence was that he had originally intended to remain with Mr Williams’ band and support him in his future efforts but subsequently changed his mind. Both Mr Richardson and Mr Etherington gave oral evidence that they did not tell Mr Williams about Mr Clarke’s plan to form a new band in the period between July 2018 and October 2018.224.Mr Clarke’s oral evidence was that, during a meeting at Mr Clarke’s house in July, he had told Mr Williams’ about his plans, and that Mr Williams did not say that he was planning to come back to perform in gigs. Mr Clarke acknowledged that this was not in his written evidence.225.The evidence about events during the meeting at Mr Clarke’s house in or around July 2018 is not entirely clear, which is unsurprising given the time that has passed and the various intervening events, including this litigation. However, as discussed further below, it is significantly more likely than not that the focus of that meeting was primarily on financial issues, rather than Mr Williams’ move to Australia.226.Mr Richardson stated that Mr Clarke “did not have Alan’s ear” after July so that discussions between them were not likely.227.Mr Clarke did not claim to have told Mr Williams at any point about the trade mark registration. When asked about it during cross-examination, he reiterated that as far as he was concerned Mr Williams had gone to Australia to retire.228.Mr Williams’ conduct after the spring of 2018 does not suggest that he understood that Mr Clarke (or any of the Defendants) planned to set up an alternative band.229.Weighing up all the evidence, it is unlikely that Mr Clarke told Mr Williams of his plans, or that Mr Williams was aware of them. His evidence that Mr Williams was informed of Mr Clarke’s intention to start a new band by Mr Richardson is not supported by any other evidence, including that of Mr Richardson. In the circumstances, I consider it more likely that there was some discussion during the spring of 2018 of the possibility that the Defendants might perform as the Rubettes without Mr Williams when Mr Williams was in Australia, but that Mr Williams was not in favour of such a plan, and did not take that discussion as a serious proposal to start a new band without his involvement.