Case No. IP-2021-000046

195.I have set out the requirements for a finding of bad faith under section 3(6) TMA from Red Bull. This must be assessed at the application date.196.Ms Messenger submits that the following circumstances known to D1 at the date it applied to register D1’s 2020 Trade Marks mean that, taken as a whole, in making those applications D1’s conduct fell below the standards of honest commercial practices:i)D1’s awareness that C was using the signs ICE and C’s ICE Logo and that C had registered either or both of C’s Trade Marks;ii)D1’s awareness that C was challenging the validity of D1’s 2015 Trade Marks and contended that the use of the sign ICE infringed its rights; andiii)That D1 had been explicitly informed by Mr Marston by email after the Las Vegas meeting that C’s intention to protect its ICE brand included the field of robotics.197.Mr St. Ville for the Defendants merely submits in his skeleton that no facts have been provided that can realistically be advanced to raise a claim of bad faith against D1 in relation to D1’s 2020 Trade Marks, and he did not address the facts relied on by C set out above.198. I am satisfied of all of the facts relied on by C, save that I do not believe I have evidence that on 18 May 2020 the D1 knew that C had applied for C’s ICE Co-Botics Logo on 24 January 2020, and so I am not satisfied of that on the balance of probabilities. It is not disputed that it knew of the registration of C’s ICE Logo by this time. I also consider as being relevant, proven facts the warnings about use of the brand ICE that D1 was given by its UK distributors by way of Mr Elmore in October 2014 and Mr Killi in 2019. 199.I remind myself that D1 is presumed to have acted in good faith unless the contrary is proved to the civil standard, and that requires cogent evidence. The first question I ask myself is whether the facts relied on by C which I have found to have been proved, in the context of the warnings I have referred to, are consistent with good faith, taking into account all of the circumstances of the case. I do not believe that they are. I consider that D1’s conduct in the light of its knowledge of these facts and warnings amounts to dealings which fall short of the standards of acceptable commercial behaviour observed by a reasonable person with experience of these matters.200.For those reasons I find that D1 applied for D1’s 2020 Trade Marks in bad faith.