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

SS’s evidence is that Morley’s faced a constant battle with imitators, and the first one that he became aware of, in around 2010, was KK. He said that when driving through the Ladywell area of Lewisham, where SS lives, he noticed a new shop being fitted out. He heard through his brother that the landlord’s son was saying that it was going to be a Morley’s which he knew was not the case. He then discovered that the landlord had applied for planning permission stating, incorrectly, that it was going to be a Morley’s. When it opened, he said it was called “Mowley’s”, and used branding and logos which he considered imitated the Morley’s branding. He said he visited KK to tell him that he could not infringe Morley’s trade marks in that way, and although they had discussions, they were not fruitful. Accordingly, he commenced a claim and obtained an injunction against KK on 16 November 2010. His evidence is that KK changed the name of his shop to “Best Fried Chicken” for a period of time before changing it to “Metro’s”.

KK describes this differently. In his witness evidence he says that he opened his first chicken shop in 2009, in Rushey Green, under the name “Best Mowley’s”, with the intention of creating a brand that he could franchise to others in the future. In cross-examination he agreed that he was aware that Morley’s existed as a brand, as he had seen their shops. He did not agree that “Mowley’s” was very similar to Morley’s. It was noticeable that the way he pronounced both words in evidence were indistinguishable from each other, although he denied it when it was put to him. He said that he added “Best” to Mowley’s” as he wanted people to know his brand was totally different, and he believed it achieved that. He agrees that SS approached him, but says this was after he had received a letter from the Claimant stating that the sign “Best Mowley’s” infringed the Claimant’s rights in “Morley’s”. He does not give an account of the conversation with SS. He said after taking legal advice he did not hear anything further in relation to the matter until he received a judgment from the Court ordering him to stop using the “Best Mowley’s” sign and not use it in the future.

KK then gives the following chronology in his witness statement: in 2013, he opened a new chicken shop at 85 Ladywell Road, SE13, and named it “Metro’s”. He said this was the first Metro’s store. He opened a second Metro’s shop at 21 Rushey Green, where he had formerly run “Best Mowley’s”, in or around 2015. In 2017 he said he franchised Metro’s for the first time to Sangeeth Varatharasa who opened a Metro’s shop on Portland Road. By the time of his witness statement in February 2024 he said he had over 19 franchised outlets. He said he had previously had 28, but 9 franchisees had left as a result of this litigation.

He was questioned closely about this chronology by Mr Pearson on the first day of trial. Mr Pearson put to him that he did not open his first Metro’s shop in 2013, because until July 2015 that premises at 85 Ladywell Road was an outlet named “Hunger Hut”. KK denied it, accepted it was a Hunger Hut until 2012, but said that at the end of 2012 he bought the lease and opened his first Metro’s there in early 2013. He was adamant on the date when pressed, saying “I can tell you hundred times or thousand times”. Mr Pearson then put it to him that his evidence that he opened a second Metro’s shop at 21 Rushey Green was not correct, as until July 2016 that was a “Best Fried Chicken”. KK said he had only operated it as a Best Fried Chicken after he was stopped from using the “Best Mowley’s” brand in 2010 until 2015, when he changed it to Metro’s. Again, he said he was certain about this date.

However, on day 2 of the trial, as cross-examination of KK continued, Mr Pearson attended with a number of street images from Google, obtained from the Wayback machine. Ms Watkinson did not object to their introduction into evidence. Those illustrated that, as Mr Pearson had put to KK the previous day but KK had denied, Ladywell Road was a Hunger Hut from at least May 2012 until June 2015, so could not have become the first Metro’s until after that date, and the Rushey Green store was a Best Fried Chicken from May 2012 to at least July 2016. KK accepted that is what those images showed, as he had to. I am satisfied on the evidence from those images that the first Metro’s shop was not opened until sometime after June 2015, and the second not until sometime after July 2016. KK said that these were simple mistakes, because he could not remember the exact dates, although I note that he had been adamant about them the previous day. He denied, when Mr Pearson put it to him, deliberately giving false evidence in his witness statement and earlier oral evidence in order to mislead the court that he had opened a Metro’s before he had in fact done so. He said that he did not use computers and so had no data to call on but his own memory, and that was mistaken. I did not find him convincing on this point. I think he would remember the year in which he opened his first Metro’s shop. I regret to say that I believe he was seeking deliberately to mislead the court.