IP-2023-000120 - [2025] EWHC 1793 (IPEC)

NHBCL relies on its continuing manufacture and sale of the Claimants’ Bag after dissolution. It says that it had generated substantial goodwill in the intervening period in relation to sales of the Claimants’ Bag.

For the period June 2017 to April 2018, it is not at all clear that NHBCL will have generated any of its own goodwill given the nature of the transition and the evidence of for example what the wholesalers were told. The Restored Company was continuing to trade. Organic Hill was continuing to trade. It seems to me that the goodwill generated in that period continued to accrue to the Restored Company and/or potentially to Organic Hill.

Organic Hill presents another difficulty for NHBCL. It had been the largest wholesaler/stockists for the Restored Company from 2013 when it was incorporated. It was accepted both that it had goodwill and that it was continuing to trade and had been trading continuously. NHBCL continued and continues to provide stock to Organic Hill.

A further minor wrinkle arises in that in so far as the Logo and the Brand Name were assets of the Restored Company as distinct from the Trade Mark they too will have passed to the Crown bona vacantia. This is resolved in two ways: (i) when the Restored Company was restored the Logo and Brand Name will have revested in it. The deemed continuation of the Restored Company throughout the period of its dissolution may then resolve any issue of permission to use the Logo and Brand Name so far as it was required; and (ii) in any event NHBCL could have generated its own new goodwill (see Barnsley Brewery at [462]).

It is therefore possible that NHBCL had generated some goodwill in its business from 10 April 2018. It therefore needs to establish its own goodwill in the business of the Claimants’ Bag using the Logo and the Brand Name for the purposes of the passing off claim between 10 April 2018 and November 2022. Such goodwill would need to be more than nominal. It cannot be inferred; there must be an evidential base for it, and it must be more than mere use. It is a question of fact.