[2024] EWHC 3256 (IPEC)

Mr Andersson’s evidence of use is that the Claimant has been selling audio hardware products bearing the Alice Mark to customers in the UK and internationally since 2018 and has been selling audio-visual hardware products throughout the UK since 2019. In cross-examination he agreed that the change to selling audio-visual hardware products was a reference to the introduction of the Alice Longitudinal Timecode Distribution Amplifier (“Timecode DA”). I will come back to that.

Mr Andersson provides a list of the Claimant’s products offered for sale to customers during the relevant period at paragraph 9 of his first witness statement. This shows: 12 different broadcast consoles and mixing desk products, plus the Alice 28 Series which is a broadcast console for bespoke builds; 8 products in the Claimant’s pre-amplifier “PAK Range”; 5 products in its “Rack Range” including a stereo compressor, a forward compression amplifier, two distribution amplifiers and the Timecode DA; 6 products in the “500 Lunchbox Series”, being an audio compressor, pre-amplifiers, and an audio equaliser; and several miscellaneous products including a microphone extender and peak programme meters (“PPMs”). The Claimant has provided datasheets and technical information for these products which Mr Andersson says are also available to download on the Claimant’s website.

Mr Andersson’s evidence in his first witness statement is that all of these products display the Alice Mark on their face, except those which are sold under the Claimant’s sub-brand “Pye” which say “Alice Ltd” on the rear of the product. However, in his second witness statement he clarified that the Claimant also sells some third party products which do not carry the Alice Mark, which he described as a very minor part of its business. He said some of these were spare parts of low value such as Penny & Giles fader knobs, but sometimes they were more costly items such as Yello Tec microphone arms, at £250 each. He said such third party products were made available to customers of the Claimant’s own products branded with the Alice Mark, or the Claimant’s services provided under the Alice Mark, in order to provide them with a convenient “turnkey” solution, but were not retailed or distributed as a freestanding item. He thought they generated about £10,000-£20,000 of revenue per year but no significant profit. I have seen invoices bearing the Alice Mark in the Claimant’s disclosure which show that it sold such third party goods, and I am satisfied that it did so as part of the Claimant’s business and under the Alice Mark.

Mr Andersson exhibits printouts from the Claimant’s website from 2019 to December 2023 (obtained by use of the Wayback Machine) showing the Claimant’s (but not the third party) products for sale and including photographs of certain products which show use of the Alice Mark upon them. Mr Andersson also exhibits printouts from the websites of its six third party UK distributors showing that they each carried and offered for sale to the public certain of the Claimant’s products carrying the Alice Mark at the Relevant Period. I accept that the Claimant’s products offered for sale on the UK market from its website and through third party distributors all had the Alice Mark upon their face, except for the PYE products which had it on the rear of the product, and that all of them were offered for sale under the Alice Mark.

I have heard about one order of products (the Alice Tieline MHB which is a microphone input extender) which Mr Andersson said the customer required to be sold with the client name on them, so the Claimant made a batch of 25 to that specification. Accordingly the physical product in that order was not branded with the Alice Mark, but nonetheless I am satisfied they were offered for sale under the Alice Mark and invoiced with an invoice bearing the Alice Mark. Mr Andersson was also questioned about several products for which the Defendants could not locate invoices. He said that some of them, such as the Alice Air 2016 Quad Guest Headphone Amp, had been supplied as part of mixing desks, and not sold as a standalone product, so he was not surprised that there were no individual sales visible in the invoices. I accept that evidence.

Mr Andersson says that the Claimant makes all its branded products in the UK and sells to clients throughout the UK as well as exporting products to other countries. I have seen a selection of invoices from each year from 2020 to 2024 supporting this evidence.

Mr Andersson says that all of these products are “apparatus/instruments used in signal-mixing, sound recording and sound reproducing for use in radio and television production and broadcasting”. He points to the mixing desks (Alice 828 Mk3 and Alice 28 Series) as an example of audio apparatus. As products which he says are “of particular application in film and television production” he points to the Mic Amp PAK Duo with TX & USB, Mic Amp PAK Solo with TX and USB, the Timecode DA and Dual Twin peak programme meters (PPMs) with Sifam 74A and 74B meters.

The Mic Amps are as described. On its website the Claimant describes them as “ideal for remote presenters and contributors to radio and TV shows using an existing microphone and the USB output into a PC or laptop”.

PPMs are used for live-on air audio monitoring and also have post-production use.

The Timecode DA forces the same time code signal to be sent to all audio and visual recording equipment used at the location so that they are all synchronised together, and consequently sound and image is also synchronised together. The Claimant’s website describes its uses as including “On-location shooting with PSC cameras and portable audio mixers that require a jammed LTC timecode signal, outside broadcast trucks or fixed installations that require timecode to be sent to vision mixers, EVS, audio mixing desks and studio clocks etc”. Mr Andersson confirmed in cross-examination that the time code signal was added to, or embedded within, an input audio signal.

Mr Andersson was challenged in cross-examination about whether any of these products could properly be considered ‘audiovisual equipment’ as opposed to audio equipment. He said that the Timecode DA was designed for use in radio and television (including outside broadcast environments and theatre environments) with portable single cameras and for field equipment jamming. He describes it as “important AV integration equipment which ensures that audio sound desks and cameras work together smoothly using the same time signal, to avoid lip sync issues, for example, and to assist with the editing process…”. I accept that the Timecode DA is commonly and very frequently used in audiovisual environments, although it can also be used in audio-only environments, particularly those with long runs of cable.

In his witness statement Mr Andersson also points to the Mic Amp PAK Duo with TX & USB product as being one which allows two audio signals to be input, mixed within the device, and the resulting audio provided via two audio outputs in the form of standard audio sockets but also via a USB output which is intended to allow the mixed audio to be provided directly to a computing device. He says, “The intention of this product is to allow content-creators – particularly those making digital video content for online applications – working on a laptop who wish to introduce a high-quality audio feed into their computing device to mix it with the video feed available to the computing device”. He was asked in cross-examination if the specification of this product had been developed specifically for content creators, or if he had just said so to support this case. Mr Andersson said that it had been developed for several different uses and one was for content creation. I accept his evidence.

Mr Andersson has also exhibited product reviews in independent specialist publications. For example, he has provided an extensive 5-page article from the December 2021 issue of Sound-on-Sound magazine, which he describes in his witness statement as the world’s most recognised audio equipment review magazine (description not challenged in cross-examination). In this the author notes that Mr Fletcher has “Reunited with the much-loved Alice brand after many years” and asks if he has “managed to breathe new life into this classic compact mixer”, being the Alice 828 Mk 3 analogue mixer. Another article from the same magazine in November 2023 reviewed the Claimant’s stereo optical compressor, the Alice 538R. In both articles the author provides a close analysis of what it sees as the strengths and weaknesses of the relevant product. Mr Wood in closing for the Defendants noted that there was no evidence about whether this was paid-for promotion or not, but he did not question Mr Andersson on the point in cross-examination, so it goes nowhere, in my judgment.