IP-2022-000036 - [2023] EWHC 2005 (IPEC)

Counsel both submitted that the relevant date for assessing whether both s.5(2) and 5(3) obtains is the priority date of the AC Cobra Mark, 31 October 2006, though without authority for the proposition. This is not consistent with the relevant date for s.10(2) and 10(3) of the 1994 Act and the equivalent provisions of Regulation (EC) 207/2009 and its successor – see Burgerista Operations GmbH v Burgista Bros Ltd [2018] EWHC 35 (IPEC) at [54] to [59]. The inconsistency did not occur to me during the trial, which had less than a day of compressed submissions covering quite a wide range of topics. Since counsel were agreed and because I do not believe that it makes any practical difference, I have not invited further submissions and the further cost that this would incur. For present purposes I will assume, possibly wrongly, that the correct date is 31 October 2006.