Case No. IP-2021-000046

156.The question is whether D1 has a defence to C’s application to invalidate D1’s 2015 Trade Marks in light of D1’s case that C has acquiesced in the use of such marks in the UK for more than 5 years.157.I have found as a matter of law that the five-year statutory period begins to run in relation to use which is (i) after D1’s 2015 Trade Marks have been registered; and (ii) after C knows of both the fact of the registration of D1’s 2015 Trade Marks, and the use of D1’s 2015 Trade Marks. 158.C submits that the earliest date that all three of these requirements are met, so that time can have started to run for the purposes of s5(4) TMA, is 26 July 2019, which is the date that C says it became aware of the registration of D1’s 2015 Trade Marks, as confirmed by Mr Marston in cross-examination. It is common ground that date is after D1’s 2015 Trade Marks were both registered and used. I accept Mr Marston’s evidence as I am satisfied that he is a credible and honest witness generally, including on this point, and there is really nothing to gainsay it. 159.That means that there can be no argument that C has acquiesced in the use of such marks in the UK for more than 5 years, as that five year period has not yet expired and will not expire until 25 July 2024 which would have been the earliest date that the Defendants could have relied upon an acquiescence defence, had the parties not agreed that these proceedings have stopped the clock. The parties dispute whether that clock was stopped by the issue of the claim form or the service of the claim upon the Defendants or any of them or, indeed, on the taking of any earlier action by C, but these are not matters I need to determine as they make no difference. The defence of acquiescence cannot succeed on the facts of this case.160.Accordingly, C’s claim that D1’s 2015 Trade Marks are invalid succeeds.