UT (Tax & Chancery) UT/2023/000103 - [2025] UKUT 00102 (TCC)

The first part of this Ground refers to [113] of the FTT Decision, which reads:

“We have concluded that while it is possible that another business would wish to purchase the trademark the number of potential buyers in the real open market would be small. This is because:

(1)

It was accepted that Ballards was operating in a small local market therefore it is that small local market which is giving their trademark value.

(2)

We have assumed that anyone who wished to purchase their trademark would be doing so either:

(a)

in order to compete in that same small local market, but if that was the case it should be assumed that Ballards, as a “prudent business negotiating seriously” would have included a “non-compete” provision in the sale agreement extending to that local market;

(b)

in order to compete in a different market elsewhere, in which case it is hard to see why they would ascribe any value to the Ballards’ trademark and not simply have created a new trademark for themselves.”

Mr Simpson submitted that the reference at (2)(a) of the above passage to a non-compete agreement was an error of law because “it makes no commercial sense” and was contrary to Mr Ballard’s evidence that if the trademark was sold to a third party, Ballards would have licensed it back and paid a licence fee. Mr Simpson asked us to find that if this evidence had been taken into account “the FTT’s conclusion is unsustainable”.

However, Mr Simpson accepted that there was no error of law in the FTT’s finding that “the number of potential buyers in the real open market would be small”. Thus, this Ground is a not a challenge to a finding of fact (because the finding is accepted). It is instead a challenge to part of the reasoning by which the FTT arrived at that finding, and this part of the Ground therefore cannot succeed.