Claim No: IP-2022-000066 - [2024] EWHC 1369 (IPEC)

SS’s evidence is that Morley’s was set up by his father in 1985 with the intention of creating a fast-food franchise inspired by KFC. SS was not born until 1986 so he cannot give any direct evidence about the early years of the business and he does not know where the name Morley’s came from. He says that it started off serving fried chicken, burgers and ribs with a simple menu mostly focussed on fried chicken and chicken burgers. It introduced chicken wings only in the 1990s when KFC introduced them to the UK market.

He believes that his father opened the first two Morley’s stores himself, before beginning to franchise them in around 1988. He would help franchisees find suitable locations, provide them with access to Morley's suppliers, train them and oversee the start-ups. He says that most of the early franchisees were from his own Sri Lankan community, and Morley's was at the centre of that community in South London. His father's view was that Morley’s should be for everyone and accessible to all, and so pricing was set to reflect that, and that policy continues.

SS said that Morley's reputation was built primarily by word of mouth and by being at the heart of the communities in which the shops were located. SS was asked by Ms Watkinson in cross-examination whether he would accept that the oral pronunciation of the name Morley’s when spoken out loud was a key feature of its reputation among members of the public, or a primary way in which members of the public would recognise the brand and he said, “I would say yes, it is definitely significant, it is significant for sure”.

SS says that from day one, Morley’s has always made use of the same logos, marks and branding. The Morley’s Word Mark, the Morley’s Red and White Mark with the strapline, the Triple M Mark and the MMM Mark had all been used since 1985. The Triple M Mark was used in the name of the Triple M burger and the Triple M meal, from the very first Morley’s menu until today. He said in cross-examination that the Morley’s Red and White Mark has always included a strapline “MMM… It Tastes Better” and he could think only of a very few occasions, usually when he was co-branding with others on merchandise, clothing or sauces, where the strapline was removed. However he said that he would “always prefer “MMM…It Tastes Better” to be there, because I do not want anyone to ever misunderstand that is Morley’s”. He was asked in cross-examination if his father deliberately copied the KFC sign in creating the Morley’s Red and White Mark and he said, “I think ‘inspiration’ is probably the right word”.

SS said in his witness statement that because the marks had all been used together, “All the marks were, and still are, synonymous with each other”. In cross-examination he was asked whether the only overlapping feature or common element was the word “Morley’s” and he drew an analogy saying, “The best way I could describe it is if you have mother and father as Morley’s and the children are the Triple M, so it is very much that you associate Triple M with Morley’s and the MMM because of the strapline as well.” He agreed that he was suggesting that the letter M was the common element between all of C’s Marks. Of course, these are matters that I have to assess for myself.

By 1995 or 1996, he believes, Morley's had about 20 or 25 shops, and this rose to about 40 by the time his father passed away in 2002. After his father's death, his mother who had not previously been involved in the business, working as an accountant in her own career, was forced to take over Morley’s and she ran it until SS graduated from university and became chief executive in 2009. His evidence is that Morley’s currently has over 100 outlets of which five are owned by SS personally and the others are owned by franchisees.

The Claimant was incorporated in 1996 but SS is not able to explain why or how this happened. He said, “I know is that Morley’s had been operating for 11 years at that point and it therefore made sense for my dad to incorporate a limited company from which to continue growing the business.” He said in his witness evidence that the Claimant then held all the goodwill in the business and the Morley’s brands from that point onwards. When asked about this in cross examination, he said that he did not have any written assignment or other documentation showing that the Claimant had taken ownership of the existing goodwill in the Morley’s brand. However he assumed that the Claimant owned it because all of the franchisees had continued operating their Morley’s franchises but paid their licence fees to the Claimant instead of his father. He said that if there was any doubt about whether the Claimant owned the brands, there would have been complaints, and he is not aware that there were any.

SS says that after his father's death his family received offers to purchase the Morley’s brand, and one core supplier tried to create direct contracts with Morley’s franchisees to cut the family out. His mother therefore took advice from a trade mark attorney and registered the Morley's Word Mark in 2002. SS said that between 2002 and 2005 the Claimant’s business somewhat struggled and there was little growth in this period. SS said the Claimant had 38 stores in 2005.