Tartan Army Ltd v Sett GmbH & Ors [2017] ScotCS CSOH_22 (10 February 2017)

Tartan Army Ltd v Sett GmbH & Ors [2017] ScotCS CSOH_22 (10 February 2017)

The court found that the pursuer's trade marks for 'Tartan Army' are valid and enforceable in the relevant classes, and that Alba Football Fans Limited infringed these marks by using the name in commercial activities beyond the scope of any informal permission previously granted. The term 'Tartan Army' is sufficiently distinctive in the context of merchandise and services to function as a trade mark. The pursuer is entitled to interdict and destruction of infringing materials, but not to count and reckoning, as that claim was withdrawn.

Citation
[2017] ScotCS CSOH_22
Parties
Pursuer: Tartan Army Limited; First Defender: SETT GmbH; Second Defender: Oliver Reifler; Third Defender: Iain Emerson; Fourth Defender: Alba Football Fans Limited
Jurisdiction
Scotland
Judgment Date
10 February 2017
Procedural Posture
Intellectual Property Action / Final Judgment After Proof Before Answer
Outcome
Pursuer succeeds in part; interdict and destruction of infringing materials granted; claim for count and reckoning dismissed; expenses awarded to pursuer.
Legal Topics
Trade Marks, Passing Off, Brand Licensing, Declarator of Invalidity, Interdict
Intellectual Property Commercial Law Trade Marks Passing Off Brand Licensing Declarator of Invalidity Interdict

Case Brief

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Parties

Tartan Army Limited

Pursuer

SETT GmbH

First Defender

Oliver Reifler

Second Defender

Iain Emerson

Third Defender

Alba Football Fans Limited

Fourth Defender

Procedural Posture

Intellectual Property Action / Final Judgment After Proof Before Answer

Legal Issues

  1. 1 Whether Alba Football Fans Limited infringed the pursuer's registered trade marks by using 'Tartan Army' in magazine and travel services
  2. 2 Whether the pursuer's trade marks are valid or should be revoked/declared invalid
  3. 3 Whether the pursuer is entitled to interdict and destruction of infringing materials

Ratio Decidendi

The court found that the pursuer's trade marks for 'Tartan Army' are valid and enforceable in the relevant classes, and that Alba Football Fans Limited infringed these marks by using the name in commercial activities beyond the scope of any informal permission previously granted. The term 'Tartan Army' is sufficiently distinctive in the context of merchandise and services to function as a trade mark. The pursuer is entitled to interdict and destruction of infringing materials, but not to count and reckoning, as that claim was withdrawn.

Court Disposition

Pursuer succeeds in part; interdict and destruction of infringing materials granted; claim for count and reckoning dismissed; expenses awarded to pursuer.

Orders

  • Interdict prohibiting Alba Football Fans Limited from infringing pursuer's trade marks and passing off goods/services as those of pursuer.
  • Order for destruction of all products and promotional/marketing material in Alba's possession using 'Tartan Army' mark.