Interflora Inc & Ors v Marks and Spencer Plc
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE PATTEN
- LORD JUSTICE KITCHIN
- SIR COLIN RIMER
Areas of Law
- Intellectual Property Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
Marks & Spencer and Interflora are engaged in a trade mark infringement dispute. The Court reviewed the proposed draft order by M & S, granting and reserving costs and other procedural matters pending a retrial before a different judge. The court ordered M & S to receive certain sums and deferred the injunction question to the Chancery Division.
Judgment
Judgment on Form of Order
Lord Justice Kitchin:
This is the judgment of the Court. We have given careful consideration to all of the submissions and materials filed by the parties in connection with the form of order.
The order to be made will follow the form of order proposed by M & S (“the draft order”) to the extent (and subject to the modifications) set out below.
We will make an order in terms of paragraphs 1 to 3 of the draft order.
As for paragraph 4 of the draft order, we consider that the question whether an injunction should be granted pending the retrial and the terms of any such injunction should be considered by a judge of the Chancery Division of the High Court upon an application made for that purpose by Interflora. Accordingly, we will make an order in terms of paragraph 4 of the draft order but do so entirely without prejudice to any such application which Interflora may choose to make. We express no view about the merits of any such application.
Paragraphs 5 and 6 of the draft order have given rise to three areas of dispute. The first concerns the issues to be remitted for retrial. We are satisfied that the issues to be remitted are correctly identified in our judgment, that is to say the claims for infringement under section 10(1) of the Trade Marks Act 1994 and Article 9(1)(a) of the Community Trade Mark Regulation. Judgment was entered for M & S upon the other claims for infringement by the order of Arnold J dated 23 May 2013 and 12 June 2013, against which there was no cross-appeal. Nor did Interflora file a respondent’s notice in relation to the appeal by M & S.
The second concerns the identity of the judge. In light of all the circumstances and the submissions of the parties we have come to the conclusion that the case must be remitted for retrial before a different judge of the Chancery Division of the High Court.
The third concerns the form of the retrial. We do not believe it would be appropriate for this court to give directions as to the form of the retrial beyond the particular matters to which we have referred. Directions for the retrial must be given by a judge of the Chancery Division of the High Court upon an application made for that purpose.
We will therefore make an order in terms of paragraphs 5 and 6 of the draft order.
We do not understand there to be any substantive objection to paragraphs 7 and 8 of the draft order. There is a significant dispute between the parties as to the terms of paragraph