Case No. IP-2022-000006

, because no other outcome is consistent with the ordinary licensor-licensee relationship.” (emphasis added)44.Alternatively, the Claimant accepted that the Agreement could (theoretically) have been an assignment, or it could have severed the goodwill geographically (as in Dent v Turpin (1861) 2 J & H 139). According to Wadlow at 3-403, an assignment of goodwill need not be in writing and “a transaction intended to assign a business as a whole necessarily passes the goodwill to the assignee.” But the Claimant maintained that implying an assignment which divided up the goodwill between the parties would have been just a legal fiction.45.Had it not been for the Partnership Agreement, given James Hayman-Joyce’s pre-existing goodwill in the name, the arrangement between the parties might well have amounted to no more than an implied licence for the Broadway business to use the name, with all goodwill continuing to vest in James Hayman-Joyce, rather as in Dawnay Day & Co Ltd v Cantor Fitzgerald International [2000] RPC 669, where the licence was conferred upon a new joint venture company. Such a licence could have been terminated on reasonable notice, after which the partnership would have had to change its trading name (as in Quantum Advisory Ltd v Quantum Actuarial LLP [2023] EWHC 47 (Ch).)46.Construing the Agreement as a whole, and taking into account Clause 10 as well as the dissolution provisions, and in particular the significant differences between Clause 20 (d) and Clause 25, in my judgment it certainly did not grant an express licence. In my judgment, the Partnership Agreement also displaces any possibility of an implied licence, taking into account the test for implying terms summarised by Carr LJ in Yoo Design Services Ltd v Iliv Realty Pte Ltd [2021] EWCA Civ 560 at [51]. Its terms are incompatible with there being an implied licence. Had there been such a licence, James Hayman-Joyce could have determined the partnership’s right to use the name at any time, on giving reasonable notice, but nothing in the Agreement suggests he had such a right, which I am satisfied would have been incompatible with the express terms of Clause 20. In all of the circumstances governed by Clause 20, the right to use the name was a business asset which would be acquired and used even after dissolution by a continuing partner. The only potential requirement to cease use of the name is seen in Clause 25, which excluded a continuing right to use the partnership name only following dissolution in essentially unforeseen circumstances. Moreover that provision appears to have been inserted for the benefit of all of the partners, not just James Hayman-Joyce. 47.I am satisfied that Clauses 20 and 25 could not have been drafted as they were had the parties contemplated that once James Hayman-Joyce retired from the partnership or died, the partnership’s right to use the name would or might cease. Had he retained a right to give notice to the partnership to cease using the name, that should have been set out in the Agreement, to counter the combined effect of the clauses I have identified above. In my judgment, the natural reading of the Agreement is that the Hayman-Joyce name was an asset of the partnership, not an implied terminable licence dependant upon Mr Hayman-Joyce’s continuing licence or continuing interest in the partnership.48.I am reinforced in that view by the Claimant’s submissions as to what it claimed would have been the terms of that implied licence. The suggested terms seem to me to reflect the specific complaints which the Claimant raised in its letter of 25 January 2021, rather than terms which the parties would, if the question had been raised with them in 1999, have agreed were a necessary part of the Agreement. 49.In my judgment, although the partnership took over the part of James Hayman-Joyce’s business which related to the Broadway area (subject to the point about residential sales which I discuss below), it is also hard to accept the Defendants’ case that it was an implied term of the Agreement that his existing goodwill in that area was assigned to the partnership, applying the usual test for an implied term mentioned above, even if an implied assignment might reflect s. 20(1) of the 1890 Act, where assets brought into use in the partnership become partnership assets. Mr Noorani’s recollection was that the partnership was simply a new business, with no transfer of goodwill from James Hayman-Joyce. In all the circumstances, I find that it was not necessary to imply an assignment of the pre-existing goodwill to give business efficacy to the Agreement, as long as James Hayman-Joyce could not rely on his prior rights so as to object to the use of the name, which plainly he could not have done, given Clause 4 of the Agreement. Moreover, Clause 28 of the Agreement contained exclusivity provisions which prevented James Hayman-Joyce from further exploiting his goodwill in the Broadway Patch during the partnership term. 50.In my view, the agreement was essentially that the partnership might use the name and build up its own goodwill in it, and in all the circumstances it seems to me that it is more realistic to view the Agreement as reflecting a severance of James Hayman-Joyce’s wider goodwill, on the basis that thenceforth his interest in any goodwill pertaining to the Broadway business would be as a partner in the partnership with Mr Comber governed by the Agreement. Alternatively, the Agreement reflected the abandonment or the suspension by James Hayman-Joyce of his goodwill as a sole trader pertaining to the Broadway area. That was certainly an unusual position, as the Claimant submitted, given that the two separate businesses operated as if they were branches of the same business. The Moreton business continued to trade close by the Broadway business in its own exclusive Patch, and around both Patches in No Man’s Land, and continued to offer commercial services in the Broadway Patch, despite the exclusivity terms of the Agreement. If the parties had anticipated the kind of breakdown in relations which has led to these proceedings, doubtless they would never have agreed to such a situation, but at the time of drawing up the Agreement and indeed for many years afterwards, this odd arrangement appears to have worked perfectly well. Whichever is the correct analysis, in my judgment the Agreement makes it clear that goodwill generated by use of the name after commencement of the partnership would have enured to the benefit of the partnership.51.Moreover, in my view subsequent events suggest that the parties accepted that the goodwill generated by the partnership belonged to it outright, rather than to the Moreton business as its licensor.52.First, the manner in which the partners dealt with goodwill after the incorporation of the First Defendant in 2010 supports the view that the goodwill of the Broadway business belonged to the partnership. Their accountant, Mr Noorani, gave evidence that as James Hayman Joyce’s service company was to be a partner in both of the LLPs incorporated in June 2010, he arranged for the transfer of goodwill from James Hayman Joyce to his service company, which included (separately) his share of the Broadway partnership and the whole of the Moreton business. Similarly, Mr Noorani said that he had liaised with Mr Comber’s accountants to reflect a transfer of goodwill from Mr Comber to his service company. He stated that those transfers of goodwill were reflected in the first accounts of the two service companies, albeit in 2013 the goodwill had to be transferred to the LLPs following an inquiry by HMRC. Mr Noorani’s evidence was that the goodwill transferred in 2010 would have included a number of intangible assets, not solely the IP rights, but he did not suggest that the value of any IP rights would have been excluded from the overall figures for goodwill. All in all, I am satisfied that the goodwill figures would at least have included goodwill attributed to the use of the Hayman-Joyce name. In those circumstances, it seems to me that there was intended to be an assignment of the partnership’s goodwill in the name to the partners in the new LLP. That would have made no sense, in my view, had the goodwill all belonged to James Hayman-Joyce (or the new Moreton LLP). The further transfer to the First Defendant reinforces that view.53.Secondly, the question of the goodwill of the Broadway business was discussed by James Hayman-Joyce and Mr Comber during the course of negotiations in 2012 for a new partnership deed to regulate the affairs of the Broadway LLP. In an e-mail of 31 January 2012, James Hayman Joyce commented on discussions he had held with Mr Comber the previous day. He recorded Mr Comber’s view as “You would like the ‘death’ provisions of the old partnership copied into the LLP to the effect that if I were to die you would be able to buy out my [shares] … I understand you to mean that you want the two businesses to continue to trade as they do now so far as the outside world is concerned, yet they would have no legal or financial connection.” He then described what would happen should he pre-decease Mr Comber, and the latter became the sole owner of the Broadway business: "You and Tom … might reach an agreement to co-operate in marketing etc … but equally you might not. In the latter case it would be a commercial and legal nightmare have two competing businesses trading under the same name so I will ask that a clause is inserted in the LLP agreement requiring that you change the name of your business on the date of any dissolution." Mr Comber responded on 20 February 2012, disagreeing with the suggestion: "Nothing in the current partnership says that I would need to change the name of what would then be my business."54.Both sides contended that this exchange supported their case. The Claimant suggested that it showed James Hayman-Joyce thought he had retained the power to control use of the name. The Defendants submitted that it showed that James Hayman-Joyce acknowledged at that time that, in the absence of a new clause requiring the Broadway business to change its name after his death, it would be able to continue to trade under the Hayman-Joyce name. Moreover, had there been an existing licence, the “nightmare” scenario would not have arisen, and no new term would have been needed. I prefer the Defendants’ analysis. In my view, it was clear that James Hayman-Joyce wanted to agree a new term to govern the position. Mr Comber’s comment in my view reflected Clause 20 of the Partnership Agreement, although, of course, the partners had not expressly agreed that any of the terms of that Agreement would govern their relationship, still less the relationship between the Moreton and Broadway LLPs.55.In November 2018, when the Claimant had applied for the trade mark, Mr Comber’s solicitors sent out a proposal for terms of co-existence on behalf of the First Defendant, and various comments were made upon them (whether by Thomas Hayman-Joyce or his solicitors) for the Claimant. A separate set of comments was inserted by James Hayman-Joyce himself, mainly supporting the Claimant’s position and showing some reluctance to expand the co-existence agreement beyond the terms of the Partnership Agreement. Many of the proposed terms go to the areas in which each LLP would operate. The last item in the list is of significance. The comment for the First Defendant read simply, “Joint ownership of trade mark registration.” Against this, the Claimant’s comment was:“Acknowledgment that goodwill in business is owned according to different business elements and location. [Claimant] owns all goodwill in the HJ brand that exists in residential lettings, commercial sales, commercial lettings, professional and RICS valuation work regardless of the geographical area and in residential sales outside the Broadway area.