GFS Flex Ltd v Brymec Ltd [2020] EWHC 1907 (Ch) (17 July 2020)

GFS Flex Ltd v Brymec Ltd [2020] EWHC 1907 (Ch) (17 July 2020)

The application for an interim injunction was refused because, although there was a serious issue to be tried regarding passing off, damages would not be an adequate remedy for either party, but the balance of convenience and risk of uncompensatable disadvantage lay in favour of refusing the injunction. The undertakings offered by Brymec were likely to reduce the risk of confusion, and the potential harm to Brymec from an injunction outweighed the likely limited harm to GFS pending trial.

Citation
[2020] EWHC 1907 (Ch)
Parties
Claimant: GFS Flex Ltd; Defendant: Brymec Ltd
Jurisdiction
England and Wales
Judgment Date
17 July 2020
Procedural Posture
Passing Off Action (interlocutory Injunction Application) / Interlocutory Application for Interim Injunction Pending Trial
Outcome
Application for interim injunction dismissed; case to be transferred to IPEC.
Legal Topics
Passing Off, Interlocutory Injunctions, Get Up/trade Dress, Goodwill, Misrepresentation, Balance of Convenience
Intellectual Property Commercial Law Passing Off Interlocutory Injunctions Get Up/trade Dress Goodwill Misrepresentation Balance of Convenience

Case Brief

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Parties

GFS Flex Ltd

Claimant

Brymec Ltd

Defendant

Procedural Posture

Passing Off Action (interlocutory Injunction Application) / Interlocutory Application for Interim Injunction Pending Trial

Legal Issues

  1. 1 Whether there is a serious issue to be tried in passing off based on the yellow clip as an indicium of origin
  2. 2 Whether damages would be an adequate remedy for the claimant if injunction is refused
  3. 3 Whether damages under cross-undertaking would be adequate for the defendant if injunction is granted

Ratio Decidendi

The application for an interim injunction was refused because, although there was a serious issue to be tried regarding passing off, damages would not be an adequate remedy for either party, but the balance of convenience and risk of uncompensatable disadvantage lay in favour of refusing the injunction. The undertakings offered by Brymec were likely to reduce the risk of confusion, and the potential harm to Brymec from an injunction outweighed the likely limited harm to GFS pending trial.

Court Disposition

Application for interim injunction dismissed; case to be transferred to IPEC.

Orders

  • Application for interlocutory injunction refused.
  • Action to be transferred to the Intellectual Property Enterprise Court (IPEC).