Claim No: IP-2022-000053 - [2025] EWHC 1827 (IPEC)

As is clear from the above, the Claimants have failed in many of the arguments they put forward, including in relation to the Second Label and Third Label. I have found that the First Label infringes. Most of the arguments of joint tortfeasorship have also failed.

It would be usual at this point to list the matter for a hearing as to the appropriate remedies, but given the GM Drinks and Mr Patch are unrepresented, I set out here a little more information than I would usually to assist them. All of the below is subject to the parties having an opportunity to address the Court – nothing I say in the following paragraphs is intended to pre-judge any matters. I should add that I raised these issues expressly with the parties at the end of the first day of the trial, to encourage them to attempt to settle their differences.

In terms of injunctions, on a finding of copyright infringement/passing off, an injunction would usually issue in broad terms to prevent the Defendants from infringing Found the Found’s copyright in the Work or passing off the Defendants’ products as endorsed by Ms Martin. There was before me no evidence that the Defendants have dealt in the First Label Product for some years. Further, as I understand the inter partes correspondence, representatives for GM Drinks and Mr Patch offered undertakings in relation to the First Label Product but these were not taken further. The parties may therefore wish to consider whether injunctions are necessary/appropriate, and Mr Patch may wish to consider whether he and GM Drinks are prepared to offer again undertakings not to deal in the First Label Products.

In relation to financial remedies, counsel for the Claimants stated during the trial that the Claimants had already decided to seek a damages enquiry, as opposed to an account of profits. As I have already noted, total profits on the First Label Products were £924. Some of that profit was on bottles dealt with by GM Drinks prior to notification by Ms Martin of her rights on 13 April 2020 – although the amount involved does not appear to me to warrant the legal costs of working out precisely how many bottles predated that date, and how many fell afterwards (by my calculations, approximately 5,880 bottles were after). But in any event, section 97 of the CDPA provides:

Thus, on a preliminary view, it seems that in light of my findings, no damages will be available for copyright infringement prior to shortly after 13 April 2020, by which time the vast bulk of the First Label Products had been sold by GM Drinks. Section 97 does not apply to any damages for passing off.

I do not wish to shut the Claimants out from an election at this stage, now that they are aware of my findings. But my preliminary view based on the above, and taking into account the need for proportionality, is that the Claimants already have the information they need to make an election such that Island Records v Tring disclosure would be disproportionate and unnecessary at this stage.

The (open) inter partes correspondence indicates that the Claimants requested US$200,000 from the Defendants, that being a sum said to reflect the amounts Ms Martin usually receives for her collaborations with third parties. Counsel for the Claimants before me put this based on a reasonable royalty that would be agreed in the circumstances. It is not pre-judging the matter to remark that each of the collaborations that was in evidence before me was very different to the infringement that I have found in this case. The Claimants are now also aware that the vast bulk of the Products (being the Third Label Products) do not infringe. Further, the low volume of First Label Products overall, and the very low volume dealt with from shortly after 13 April 2020, mitigate against a reasonable royalty at that level.

It seems to me on a preliminary basis and without judging the issue, that the appropriate course is to allow the parties a short period of time to attempt to settle the matter in light of my findings. If that cannot be done, I would propose transferring the quantum proceedings to the Small Claims Track of the IPEC and will hear the parties’ submissions on that proposal.

Costs in the IPEC are to a scale. I was made aware of without prejudice correspondence between the parties, although not its content. If costs cannot be settled as between the parties, they can be dealt with at a short hearing – that seems to me more appropriate in the circumstances than deciding costs based on written submissions given that GM Drinks and Mr Patch are not represented.

I will, of course, hear the parties, but hope that they find this preliminary indication helpful.