September 2009

01 September 2009

Katharine Stephens, Zoe Fuller, Alice Sculthorpe

This month we report on Nude Brands v Stella McCartney in which the High Court refused an interim injunction; a round-up of decisions of the Appointed Person January 2009 – June 2009; and what the ECJ considers abuse of a dominant position  in case of trade mark exclusivity in Der Grüne Punkt.
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Ref no.   O-019-09
Protus IP Solutions Inc v J2 Global UK Ltd 

(12.01.09)

Application (and where applicable, earlier mark)  

EFAX


- telecommunication services relating to the conversion of facsimile transmissions to e-mail messages (38)

Comment

Geoffrey Hobbs QC dismissed the appeal from the HO’s decision.  The HO held that the opposition succeeded under ss 3(1)(b) and (c):  EFAX had not acquired distinctiveness through use.

Mr Hobbs held that convincing evidence of use would be required to offset the strongly distinctive nature of EFAX.

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Ref no.  

O-037-09
Simon Buxton (t/a The Sacred Trust) v Ross Heaven
(10.02.09)

Application (and where applicable, earlier mark)  

 DARKNESS VISIBLE


- arranging and conducting workshops (41) and spiritual and lifestyle counselling (45)

Comment  

Geoffrey Hobbs QC upheld the appeal from the decision of the HO.  The HO rejected the opposition under s 5(4)(a) on the basis that, although both the applicant and the opponent had developed goodwill in the mark, it was severable and therefore Mr Heaven was just as much entitled to claim proprietorship as Mr Buxton. 

Mr Hobbs held that the HO adopted a selective approach to the evidence which lacked the breadth and depth required for the purpose of determining the dispute as to proprietorship.  There had been no hearing and the HO had not followed the approach set out in BRUTT TM [2007] RPC 19 dealing which conflicting evidence.  As a consequence, Mr Hobbs reviewed the evidence and also had the benefit of hearing oral submissions from Mr Heaven.  Mr Hobbs concluded that the written evidence that Mr Heaven had provided was so seriously open to doubt as to provide no reliable basis for a finding in his favour.  Mr Buxton was entitled to the mark on the basis of use in commerce by his organisation, The Sacred Trust. 

The HO had not erroneously taken into account use after the relevant date or outside the UK; it was permissible to consider such evidence if it appeared to provide a reliable pointer to the position in the UK at the relevant date.  Further, the HO had not been too harsh in his consideration of the evidence.

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Ref no.  

O-038-09
Heraeus Kulzer GmbH v Shofu, Inc.
(09.02.09)

Application (and where applicable, earlier mark)  

HY-BOND RESIGLASS


- chemical products for medical and technical dental purposes including material for producing artificial teeth and dentures and dental cements and porcelain and ceramics (5)


- dental instruments and apparatus, artificial teeth and dentures, dental crowns and bridges (10)



- chemical products for dental and dental engineering purposes; dental adhesives and adhesion promoters (5) (International registration)

Comment  

Anna Carboni dismissed Heraeus Kulzer’s appeal from the HO’s decision to reject its opposition under ss 5(2)(b), 5(3) and 5(4)(a).


Ms Carboni held that there was ample evidence for the HO to conclude that although iBond bordered on the descriptive, it had just sufficient distinctiveness to justify registration.  Despite the fact that her perception of the mark was slightly different to the HO’s, the important point was that the addition of the letter “i” to the word “bond” (a common word for adhesives) left the latter plain to see.


Under s 5(2)(b), Ms Carboni held that the HO was entitled to draw his own inferences from the sum of the evidence before him.  He did not pay too little regard to the risk of aural confusion and he correctly compared the marks as a whole.  Had RESIGLASS been a common name for a material used in dentistry and commonly coupled to the proprietary name of an adhesive, then the situation might have been different.  However, as it was not, the HO was correct not to ignore it.  But in any event, the HO had made a comparison between HY-BOND and iBond, finding the former distinctive.


The HO had made no mistake of law or principle under s 5(4)(a).  Under s 5(3), the HO was entitled to conclude that iBond’s reputation was insufficient to justify protection.  Since the HO’s decision, the ECJ had decided IntelCase, C-252-07.  Ms Carboni concluded that in the light of the HO’s finding on the low level of distinctiveness of iBond and the differences in the marks, it would have been difficult for the opponent to establish the necessary link (as described in Intel).  Therefore, even had the HO been wrong about reputation, the opponent would not have succeeded under s 5(3).


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Ref no.  

O-084-09
Richard Charles Archer-Perkins v Glyn Berrington
(25.03.09)

Application (and where applicable, earlier mark)  


 - various goods, mainly bags and clothing, and retail services connected with such goods (18, 25 and 35)


URBAN SHOCK


- various goods including jewellery, leather goods and clothing (14, 18 and 25)

Comment  

Professor Ruth Annand allowed the appeal from the HO’s decision to reject the opposition under s 5(2)(b) on the basis that the marks were not similar.


Professor Annand held that the HO’s consideration of the similarity of the marks was in error in relation to his visual comparison of the marks.  He did not consider how the opponent’s mark, despite being a word mark, would be perceived visually, nor did he assess the distinctive and dominant components of the two marks.


In her own consideration of the marks, and following the ECJ’s decision in the LIMONCHELLO case, C-334/05, Professor Annand held that there was a high degree of aural similarity, as well as some visual and conceptual similarities between the marks.  Applying the principle of interdependence of factors in the global assessment, since the class 18 and 25 goods were identical or very similar, there was a likelihood of confusion for the purposes of s 5(2)(b).


In relation to the application for retail services, Professor Annand relied on the CFI’s decision in Oakley, Case T-116/06. She found that the services, which related to identical goods to the earlier mark, were complementary to those goods, i.e. the goods were important, if not indispensible, for the provision of the services such that consumers may think they were provided by the same or a related undertaking.  Therefore, the opposition under s 5(2)(b) succeeded.


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Ref no.  

O-100-09
Chartered Forex Inc v Forex Bank AB
(16.04.09)

Application (and where applicable, earlier mark)  


- a wide range of goods and services in classes 9, 16, 35, 36, 41 and 42



- arranging money transfers, transportation of valuables (36 and 39)

Comment  

Geoffrey Hobbs QC allowed the appeal from the HO’s decision allowing the opposition under s 5(2)(b) in relation to certain goods in classes 9, 16 and 36.


The HO, did not look at the Registry’s guidelines or any appropriate works of reference when assessing how the term FOREX would be regarded by the relevant public.  He was entitled to do so and if he had done so would have found that, contrary to the position he had taken, FOREX was customary language for foreign exchange.


Mr Hobbs held that the marks should have been considered on the basis that they were only similar because of the common descriptive element FOREX and therefore they would have been seen as figurative marks based on a verbal component referring to foreign exchange.  On that basis, the two marks were visually and conceptually dissimilar to a degree which when taken as a whole would lead them to be distinctively different from each other. 


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Ref no.  

O-112-09
Intervention by Turbochip (UK) Ltd in rectification proceedings:
Specialist Autosport Services Ltd v Commercial Power Solutions Ltd (“CPS”)
(22.04.09)

Application (and where applicable, earlier mark)  


 - registered in classes 37, 39 and 42

Comment  

Anna Carboni dismissed the appeal from the HO’s decision to refuse to allow Turbochip to intervene under Rule 35(1) in ongoing rectification proceedings relating to the proprietorship of the trade mark.

The facts were complex, but in essence, Turobchip’s application was based on claiming that registered proprietor, CPS, had assigned the mark to it.  The HO held that the assignment was defective as only one of the directors of CPS had signed the assignment.  He and the other director each owned a 50% share in the company and since the other director did not consent to the assignment, it was not valid.  Turbochip was not the beneficial owner of the mark and therefore did not have any stake in the rectification proceedings. 

Ms Carboni agreed with the HO.  Rule 35(1) (now Rule 45(1)) refers to the applicant for intervention having “an interest” which must be “in the proceedings” themselves.  Turbochip did not have such an interest for the reasons given by the HO.  The rule was not a general invitation to anyone who claims to have an interest in the mark in issue to seek to participate in the proceedings.  Although Turbochip said it was the rightful owner of the mark, it had not challenged whether CPS was entitled to the mark in the first place and indeed, this was quite a different question.  


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Ref no.  

O-131-09
Technica SpA  v The Outdoor Group Ltd
(13.05.09)

Application (and where applicable, earlier mark)  

TECHNICALS
-  articles made of leather or imitation leather, bags etc (18)
- clothing, outdoor clothing, ski wear, footwear etc (25)




- ski, mountain and après-ski footwear and sports footwear in general (25)

Comment  

Amanda Michaels allowed the appeal by the applicant, The Outdoor Group, in part and essentially under s 5(4)(a).  The appeal succeeded in relation to a number of items of clothing in class 25, but failed for others. The appeal under s 5(2) in respect of the goods in class 18 failed.


Ms Michaels, whilst agreeing with the HO that the marks were similar, held that he had made an error in not comparing the visual similarities between the mark applied for and the registered form of the opponent’s mark (i.e. the stylised form).  However, the point could not be taken very far as it was only one point in the global assessment of the marks, even if, in relation to clothing, visual aspects of a mark were important. 


Again, whilst coming to a similar conclusion to the HO regarding the similarity of goods in class 25, Ms Michaels held that his reasoning lacked explanation and therefore she revisited the issue under s 5(2).  She held that where, as here, there was a lack of specific evidence, the question of similarity could be considered from the viewpoint of the notional member of the purchasing public.  The applicant conceded the issue on footwear, but in relation other goods, Ms Michaels found that:


    • skirts, dresses, blouses, belts and jeans were not similar;

    • goods likely to be sold alongside sports footwear e.g. waterproof clothing, sportswear, socks and sports headgear were similar;

    • goods, such as over-trousers, thermal underwear and tracksuits were on the borderline and would not be excluded from the specification in the absence of evidence.

The HO did not make any error in his reasoning relating to the class 18 goods.


In relation to s 5(4)(a), there was an apparent inconsistency in the HO’s findings on goodwill: he first concluded that the opponent’s evidence established use on a significant scale only in relation to ski-boots and their accessories, but later seemed to say that its goodwill extended beyond footwear to outdoor clothing. As a result, the HO found that use of the mark would amount to a misrepresentation if used on a range of clothing, not limited to clothing linked to outdoor pursuits/skiing. In this he made a material error. Ms Michaels held that a misrepresentation would be likely for certain goods in class 18 (such as rucksacks, sports bags) and clothing in class 25 used in outdoor pursuits.  For this narrow group of goods there could be damage either in terms of direct loss of sales or the impact on the opponent’s ability to expand its business into closely related fields.


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Appeals from the Hearing Officer to the High Court

Rübezahl Schokoladen GmbH v Sunrise International Co. Pty. Ltd ([2009] EWHC 1825 (Ch); Judge Mackie QC; 01.04.09)


The Judge dismissed the appeal from the decision of the Hearing Officer refusing an application for a declaration of invalidity, under sections 47(2)(a), of the international UK) mark shown below registered for various goods in classes 29 and 30; the appeal being in respect of “preparations made from cereals”.



The application was based on Rübezahl’s earlier CTM for the mark SUN RICE registered in class 30 for rice in chocolate, other than with an alcoholic filling.  The Hearing Officer found that there was no likelihood of confusion under section 5(2)(b) between the marks.  Rübezahl appealed.

The Hearing Officer identified the dominant elements of the international registration to be the stylised S, in the form of a rising sun, and the word Sunrise, and stated that although there were visual similarities between the words SUN RICE and Sunrise, nevertheless, the differences between the marks as a whole were such that they could not be considered to be visually similar.  Having come to that conclusion, he did not go on to consider likelihood of confusion because that only came into play once similarity was established.  The Judge noted that there was some force in Rübezahl’s submission that this was incorrect in approach and inconsistent with the Hearing Officer’s findings as to the dominant elements of the international mark.  However, the Judge pointed out that the Hearing Officer had nonetheless gone on to deal with the question of confusion when considering his overall assessment of section 5(2)(b).  

The Hearing Officer noted that there was a degree of phonetic similarity between SUN RICE and Sunrise, but confusion was not inevitable.  On the information before him, the Judge held he was entitled to conclude that in the vast majority of cases the products would not be purchased by aural request but would be picked up at supermarkets and general food stores. 

Finally, in relation to conceptual similarity, the Judge held that the Hearing Officer was entitled to conclude that there was a conceptual dissonance between the marks.  The Hearing Officer was carrying out a multi-faceted evaluation.  It was clear from his decision as a whole that he had taken into account a wide variety of factors and given them proper attention. The amount of weight given to each factor was inevitably a matter for the Hearing Officer and if he omitted to deal with matters expressly that did not mean he had no regard to them. That applied particularly to matters which were not strongly urged upon the Hearing Officer in the course of written or oral submissions. The material in this case did not reach the standard required for the appellate court to interfere. Accordingly the appeal was dismissed.


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Bambino Mio Ltd v Cazitex N.V.* (Jacob LJ, Patten LJ and Sir John Chadwick; [2009] EWCA Civ 922; 29.07.09)


The CoA (Sir John Chadwick giving the lead judgment) dismissed the appeal from the decision of the High Court ([2008] EWHC 2796 (Ch), reported in the CIPA Journal, February 2009) that there was no infringement under section 10(2)(b) by the Defendant using the sign Bambineo in the manufacture and marketing of reusable bamboo fibre nappies. The Claimant relied on the trade mark BAMBINO MIO registered in respect of reusable cotton nappies and related goods in classes 3, 16, 21 and 25.


The Judge in the court below had applied the test for assessing the likelihood of confusion set out in Julius Sämann Ltd & Ors v Tetrosyl Ltd ([2006] EWHC 529 (Ch)) including a factor which he thought was referred to as factor 8 in that case i.e. he considered that the likelihood of confusion depended on the degree of similarity between the goods.  The CoA held that the Judge failed to appreciate that this factor was not relevant where, as here, the goods were identical.  He should not have considered factor 8 at all; but his misapprehension of law did not infect his earlier reasoning regarding the likelihood of confusion which was based on a proper analysis of the similarities between the mark and the sign without reference to any comparison between the Claimant’s actual goods and the Defendant’s goods.


Jacob LJ agreed, and made a number of observations of his own.  It was important in cases of trade mark infringement to remember that the right was given to the trade mark owner on the basis of the goods for which the mark was registered. The right was given by virtue of the registration and not by virtue of any use the trade mark owner had made of his mark. In theory, there would be no confusion if the trade mark owner had never actually used his mark because he had no goods out in the market. However, it was implicit in all the tests for infringement that the trade mark owner was notionally and fairly using his mark for all the goods for which it was registered. Therefore, the only question to ask was: on what goods was the Defendant actually using the mark?


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Interim injunctions


Nude Brands Ltd (“NBL”) v Stella McCartney Ltd & Ots* (Floyd J; [2009] EWHC 2154 (Ch); 20.08.09)


NBL did not succeed in an application for an interim injunction to restrain the Defendants from applying the sign STELLANUDE to perfumes (see product on the right in the picture) under Article 9(1)(a) and (b) of the Directive.  The application was based on NBL’s CTM for NUDE registered in relation to a large range of goods and services including cosmetics and perfumery.   


Floyd J considered that it was plainly arguable that the CTM would survive an invalidity attack under Articles 7(1)(b), (c) and (d). The evidence before him failed to establish that NUDE was devoid of distinctive character in relation to perfumes, or that it was descriptive or had become customary in the trade. Whilst other traders had used NUDE as a brand name for perfume which may have given them relative rights to invalidate the mark, it did not give those rights to the Defendants.



In relation to infringement, Floyd J held the CTM and STELLANUDE were not identical; the latter included the word STELLA which would be noticed by the consumer.  However, infringement under Article 9(1)(b) was plainly arguable.  There was no difficulty in seeing the CTM in the Defendants’ sign as the two elements, although merged, would perform different functions. Equally, the defence that there was no likelihood of confusion was arguable as there had been little use of NUDE by NBL, and none in relation to perfume.


With regard to the balance of convenience, Floyd J considered that the risk of irreparable harm occurring to NBL’s business or CTM in the period to trial was fairly small for a number of reasons:


  • The risk of confusion between the parties’ products was small;

  • NBL did not enjoy exclusivity in the word NUDE;

  • NBL’s NUDE perfume project was far in the future;

  • NBL had granted a licence to Christian Dior to market a limited range of products under the NUDE mark as part of a settlement of oppositions to trade mark applications. The (confidential) terms of the licence showed that NBL retained no quality control provisions and therefore was not able to protect the repute of the brand or prevent dilution;

  • There was no suggestion that the Defendants would not be good for any damages.

The likely damage to the Defendants, through the loss of the 2009-2010 Christmas selling period and the probable loss of the STELLANUDE brand if an injunction was wrongly granted, therefore outweighed the damage to NBL if it was refused.


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PASSING OFF


Passing off and breach of confidence by ex-employee

First Conferences Services Ltd & Anr v (1) Richard Bracchi (2) Inspire Conferences Ltd (t/a IE Group Ltd)* (Peter Smith J; [2009] EWHC 2176 (Ch); 26.08.09)


The Judge granted an injunction to restrain the Defendants from using the Claimants’ confidential information (comprising the Claimants’ customer database), infringing database rights in the database and to restrain the Defendants from passing off their business as that of the Claimants.  A permanent injunction was warranted because the Defendants were continuing to use the Claimants’ information and pass off their business as that of the Claimants right up until the trial.


The Claimants’ carried on a business of organising conferences. The First Defendant was an ex-employee, and the Second Defendant, a company incorporated by the First Defendant.   


Peter Smith J held that the passing off claim was clearly established:


  • The Defendants’ website was misleading in that it suggested that speakers at its conferences were “previous speakers” at its conferences when the speakers were from the Claimants’ past conferences;

  • the First Defendant suggested to proposed speakers that his conferences were a follow up to the Claimants’ conferences; and 

  • he tried to destroy the Claimants’ proposed conferences by describing them as poor imitations of his own.

The acquisition of a domain name forecaster.com in the First Defendant’s capacity as an employee and continued use of the site for his new business was a further instance of passing off.


The Claimants had developed a massive database of contacts which was fundamental to its business.  Towards the end of his employment, the First Defendant downloaded many thousands of contact names and sales figures from the database and forwarded the information to his personal email account for future use. The database provided the First Defendant with an important tool for starting up his business. The Judge held that the First Defendant misappropriated the Claimants’ confidential information in order to generate a springboard to give the Second Defendant an unfair advantage.


The (unchallenged) evidence showed that considerable time and expense was spent by the Claimants in generating their database. In extracting a large number of customer contacts, sales information and other material the First Defendant had breached Article 16(1) of the Copyright and Rights in Database Regulations 1997.


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ANTI-COMPETITIVE AGREEMENTS


Abuse of a dominant position and trade mark exclusivity

Der Grüne Punkt-Duales System Deutschland (“DSD”) v Commission, supported by Interseroh Dienstleistungs GmbH, Vfw GmbH, Landbell AG für Rückhol-Systeme and Bell and Vision GmbH (ECJ (Grand Chamber); C-385/07; 16.07.09)

The ECJ dismissed an appeal by DSD against the CFI’s decision that DSD’s licensing system for use of its trade mark on used packaging was contrary to Article 82 of the EC Treaty. Although mainly a competition law decision, the ECJ made some findings of relevance to trade mark law.  This report focuses on those findings.

Under the German ‘Ordinance on the avoidance of packaging waste’, manufacturers and distributors of packaging are obliged to take back, free of charge, and recover used sales packaging. This can be done at, or in the immediate vicinity of, the actual point of sale (the ‘self-management system’), or via a system which guarantees the regular collection, throughout the distributors’ sales territory, from or in the vicinity of the final customer’s home (the ‘exemption system’). Manufacturers and distributors participating in an exemption system must make it known that they are doing so by, for example, marking packaging.

DSD had operated an exemption system throughout Germany since 1991 (the ‘DSD System’) and was the only operator of a Germany-wide exemption system, with up to 80% market share. A number of regional operators accounted for the remaining 20%.  The relationship between DSD and the manufacturers and distributors that participated in this system was governed by a trade mark agreement under which the manufacturer or distributor was authorised, in return for a fee, to affix the Der Grüne Punkt (Green Dot) trade mark (the “Logo”) to packaging included in the DSD system. DSD was responsible for the collection, sorting and recovery of this packaging. DSD collected and recovered the packaging through a number of sub-contractors, which each had the exclusive power, under standard service agreements, to carry out, in a particular area, the collection of packaging on DSD’s behalf. In 1992, DSD notified the trade mark and service agreements to the Commission with a view to obtaining negative clearance or an exemption.

The Commission decided that the way DSD operated its payment system constituted a breach of Article 82, since manufacturers could find themselves paying a fee to apply the Logo on packaging which was actually collected and recycled by DSD’s competitors. This is because the fee was based on the volume of packaging bearing the logo rather than the volume in fact collected by DSD. This disincentivised manufacturers from contracting with DSD’s competitors, as they would have to pay fees to both DSD and the competitor, or organise separate packaging lines. The Commission considered that this resulted in abusive foreclosure of the market and abusive exploitation of DSD’s customers and it ordered DSD to waive the licence fee for the logo in relation to packaging collected by its competitors or under self-management systems. The CFI dismissed DSD’s appeal.

One of DSD submissions to the ECJ was that the CFI had erred in holding that the Logo did not benefit from exclusivity provided for under Community trade mark law. DSD claimed that the result of the CFI’s decision was that it could not restrict the licensing of the Logo to packaging processed by the DSD System. Instead, packaging which had not been processed under the DSD System could bear the Logo and this would deprive the Logo of its distinctive character.

The ECJ agreed with the CFI and found that DSD had not shown that an item of packaging must be processed under one system alone and, accordingly, that an item of packaging bearing the Logo must necessarily have been processed by DSD.  Further, DSD had not established that affixing the Logo to packaging clearly indicated to consumers that the packaging would actually be processed under the DSD System. The Logo merely notified consumers that the packaging in question had been notified to DSD and that it was no longer covered by the obligation that it is taken back to the point of sale or its immediate vicinity.

DSD further submitted that the CFI was wrong to conclude that the Logo could not be accorded that exclusivity claimed by DSD, since such exclusivity would have no other effect than to prevent manufacturers and distributors of packaging from using a mixed system and to legitimise the possibility that DSD could be paid for a service which it did not actually provide. The ECJ found that DSD itself had set up a system which required that the Logo be affixed to all packaging, even where some packaging was not taken back by the DSD System. Accordingly, it was a matter of agreement between the parties that the use of the Logo on all packaging notified to DSD was required by the trade mark agreement.

The ECJ held that the CFI was correct to hold that the possibility could not be ruled out that a fee could be applied for the mere the affixing of the Logo to packaging, regardless of whether the packaging is processed by the DSD system.


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Distribution of media rights

Bookmakers’ Afternoon Greyhound Services Ltd & Ots v Amalgamated Racing Ltd & Ots* (Mummery, Lloyd and Moore-Bick LJJ; [2009] EWCA Civ 750; 28.07.09)


The CoA held that a joint venture concerning a new broadcast service for live horse racing pictures and the entry of a new operator into the market was not an illegal cartel that restricted competition contrary to Article 81 of the Treaty of Rome, since the object and effect of the joint venture was to increase, not reduce, competition.


In 1987 it became legal to show live television pictures of racing in a Licensed Betting Office (“LBO”). At first, betting offices paid a sole distributor, Satellite Information Services Ltd (“SIS”), to provide such a service and in turn SIS made payments to racecourses for those media rights. Due to dissatisfaction with the amount of those payments, around half of the racecourses decided to create a joint venture company (“AMRAC”) to provide a rival service and licence their rights to that new venture. The new service was launched in 2007. As a result of the agreements with AMRAC, the racecourses participating in the joint venture received more revenue for their media rights and betting offices had to pay more for the services shown in their premises. The price of the new service was greater than the reduction in the price of SIS’s service. Both services were regarded as essential to an LBO.


The Appellants (Bookmakers’ Afternoon Greyhound Services and others) were individual bookmakers and an organisation representing the interests of a number of bookmakers operating LBOs They claimed that the new broadcast services was the product of a cartel and that High Court had been incorrect in holding that the principal arrangements in relation to setting up the second service were not a breach of Article 81.


The Appellants submitted that the arrangements between the racecourses which granted LBO media rights to AMRAC had as their object and effect the prevention, restriction or distortion of competition within the market. This was on the basis that the racecourses had entered into collective negotiations with AMRAC under a lock-out agreement and had agreed minimum prices. The Respondents (Amalgamated Racing Ltd and others) submitted that their principal arrangements were objectively necessary having a pro-competitive effect in enabling entry into a market that was previously a monopoly.


The CoA held that the High Court was entitled to find that the AMRAC agreements did not have as their object a restriction in competition. The aim was to increase competition in the upstream market, enabling entry into a market which had previously been a monopoly. In order to establish a second broadcaster, it would be necessary to protect it from competition and ensure a minimum number of exclusive racecourse subscribers.


The CoA rejected the submission that the uniform prices obtained by the racecourses, and the higher prices they obtained in the downstream market, demonstrated an anti-competitive effect. It held that these racecourses were not competitors in respect of selling their LBO media rights. Closed selling was essential in order to support the new broadcast service. In addition, there could be no anti-competitive effect where there had previously been no competition in the relevant market. Accordingly, Article 81 did not apply as the objective of the arrangements was not to restrict competition. However, the CoA noted that the position may well be different on expiry of the current licenses. At that stage, AMRAC would be present in the upstream and downstream markets and would not need the sort of protection which was necessary to secure its entry into the market at the outset.


Katharine Stephens, Zoe Fuller and Alice Sculthorpe


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Reporter’s note: We are grateful to our colleagues at Bird & Bird LLP for their assistance with the preparation of this report: Clare Wilson, Emily Peters, Gina Brueton, Abby Minns, Elizabeth Wright, Nick Boydell and Amy Williams.


Profiles of all of our contributors above can be found on the "our people" page of our site.

ECJ and CFI decisions can be found at http://curia.europa.eu/jcms/jcms/j_6/home  and the reported cases marked * can be found at http://www.bailii.org/databases.html#ew