Claim No: IP-2021-000114 - [2023] EWHC 3153 (IPEC)

In his written evidence Mr Chapman said that the August Email “gained very little if any traction in reversing the damage that had already been caused”. In his written evidence, Mr Chapman provided details of, and exhibits, an email from Deborah Sinner of Gardenlink Limited, an existing client, on 18 August 2021 responding to the August Email. In it, she confirms having received the 27 June Email and says that she believed the Claimant had changed its name.

The Claimant also relies on an email from Gina Di Gregorio of Landform to Mr Chapman dated 8 September 2021 responding to an email from him, which states “I have seen that you are still writing from the Cosmopolitan email address. I thought it had changed its name to Greenscaper, as we received an email from Graeme Ludley about it” and Mr Chapman’s account in his witness statement of a conversation he had with Phil Miner of Practicality Brown Limited in January 2022, a client of the Claimant, “who expressed to me his confusion over the name change… he did not realise the Claimant and [Greenscape] were separate companies”. He exhibits an email that he sent to Mr Milner after that conversation reconfirming the Claimant’s terms of business.

The Claimant submits these examples are illustrative of clients remaining confused as to the true position even months after the 27 June Email. I accept they are. The Defendants accept that the former appears to show that Ms Di Gregorio believed that the Claimant had changed its name, but they say that this does not evidence whether there has been any diverted trade from Landform to Greenscape nor whether it caused any damage to its perception of the Claimant, and the Claimant has not called or adduced any evidence from Ms Di Gregorio on these points. I will return to that question.

In oral evidence, Mr Chapman said that he did have other conversations with clients about the August Email after he sent it, including Oxford Garden Design and Davinder at Scotscape. He did not mention these conversations in his witness statement but gave details in oral evidence. Mr Chapman also said that he spoke to Ron Leto of Green Oak who told him that he thought that Greenscape was a name change and so the Claimant as Cosmopolitan was no longer around and that he “had continued using Greenscape believing that he was still dealing with the Claimant”. As I say, I have no concerns about Mr Chapman’s credibility, and I am satisfied that this evidence was honestly given.

Mr Chapman says that it was not until 6 October 2021 that he received an email from MailChimp which set out what folders Mr Ludley had exported from the Claimant’s account to his own account. He says that the documents Mr Ludley exported enabled him to retain contact details of all the Claimant’s clients on its customer relationship management system, which numbered just short of 500 around the relevant time. The list of contacts has been disclosed to the court as a confidential exhibit.