Fayus Inc & Anor v Flying Trade Group Plc [2012] EWPCC 43 (20 September 2012)

Fayus Inc & Anor v Flying Trade Group Plc [2012] EWPCC 43 (20 September 2012)

The claimants have established a strong case of passing off based on their goodwill in the 'Ola-Ola' mark in the UK prior to the defendant's use, and the defendant's use of the identical mark on similar goods is likely to cause confusion. The defendant's trade mark registration is likely invalid under s5(4)(a) of the Trade Marks Act 1994.

Citation
[2012] EWPCC 43
Parties
Claimant: Fayus Inc.; Claimant: Fatai Adelaja Yusufu; Defendant: Flying Trade Group PLC
Jurisdiction
England and Wales
Judgment Date
20 September 2012
Procedural Posture
Passing Off and Trade Mark Invalidity Claim / Preliminary Non Binding Opinion
Outcome
Preliminary non-binding opinion in favour of claimants
Legal Topics
Passing Off, Trade Mark Invalidity, Goodwill, Bad Faith Registration
Intellectual Property Commercial Law Passing Off Trade Mark Invalidity Goodwill Bad Faith Registration

Case Brief

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Parties

Fayus Inc.

Claimant

Fatai Adelaja Yusufu

Claimant

Flying Trade Group PLC

Defendant

Procedural Posture

Passing Off and Trade Mark Invalidity Claim / Preliminary Non Binding Opinion

Legal Issues

  1. 1 Whether the defendant's use of the 'Ola-Ola' mark amounts to passing off
  2. 2 Whether the defendant's UK registered trade mark is invalid under s5(4)(a) of the Trade Marks Act 1994
  3. 3 Whether the trade mark was registered in bad faith under s3(6) of the Trade Marks Act 1994

Ratio Decidendi

The claimants have established a strong case of passing off based on their goodwill in the 'Ola-Ola' mark in the UK prior to the defendant's use, and the defendant's use of the identical mark on similar goods is likely to cause confusion. The defendant's trade mark registration is likely invalid under s5(4)(a) of the Trade Marks Act 1994.

Court Disposition

Preliminary non-binding opinion in favour of claimants