We have assembled a lot of materials and statistics comparing the leading European patent litigation jurisdictions. This variations between these courts has lead to widespread forum shopping. There have been fewer opportunities to compare the passage of cases in leading jurisdictions in trade mark cases.
Our group has now had the experience of being able to compare the progress of two trade mark cases, essentially about the same subject-matter, in the English and Dutch courts, to the highest level in each case. The outcomes were similar. The timelines to the final decision in each country were starkly different.
The cases concerned the words BACH, BACH REMEDIES and BACH FLOWER REMEDIES used in practice in relation to complementary medicines, and in registration for pharmaceutical and homeopathic remedies and services related to them. The story started back in the 1930s. Dr Edward Bach was a well-renowned physician practising in Harley Street, London. Dr Bach became convinced of a link between emotional and physical health and, from 1930 onwards, devoted himself entirely to finding natural remedies that would combat poor health by introducing harmony and peace into the lives of patients. With this in mind he developed remedies manufactured from plant flowers and blossoms of trees and shrubs. Each of these remedies was attuned to specific emotions and frames of mind.
Dr Bach described his remedies in a book that appeared in 1933 entitled “The Twelve Healers and Other Remedies”. This book also contained precise indications of how the remedies should be prepared, and two methods were described for this. He was, and remained, very keen to ensure that as many people benefitted from the remedies and that they should know how to make them. The book also gave the details of two firms of London chemists who would supply the remedies for people who could not make their own.
Whether, Dr Bach’s prescription for a healthy life benefitted him I had rather doubted. In 1936, Dr Bach died prematurely. He was only 50 years old. He had moved to a small village in Oxfordshire to carry on his complementary medicine work. However, I have recently learnt that he was diagnosed as having cancer in 1917 and so to survive another nearly 20 years, and to continue his philanthropic work to the end, was a significant achievement.
After his death, his assistants (disciples even) carried on his philanthropic work. In 1979, a successor to those disciples, but not Dr Bach’s business because there never was one, set up a business and registered Bach as a trade mark for relevant goods. In 1988, Julian Barnard, a devotee of Dr Bach’s original teachings, set up a company called Healing Herbs Limited to spread the gospel of Dr Bach and to provide flower remedies, made in accordance with Dr Bach’s original directions, for those who could not make them themselves.
His company, and many other practitioners, were harried by trade mark agents for the registered proprietor, a company confusingly called Bach Flower Remedies Limited. By this time, so the evidence showed, the products – whoever made them – had become known as Bach remedies or Bach flower remedies out of respect for Dr Bach and his work, and as the convenient and natural way to refer to these products. Likewise, the practitioners had become known as Bach practitioners.
The situation reached such a pitch that Julian Barnard’s company issued High Court proceedings against Bach Flower Remedies Limited (“Flower Remedies”) asking the English High Court to revoke the latter’s UK trade mark registrations for Bach and a stylised signature version of that word.
To cut a long – but extraordinary – story short, after scores of witnesses were cross-examined at the trial in London, the trial judge, now Lord Neuberger (the former Law Lord and now Master of the Rolls – President of the Court of Appeal), held that the word registration was descriptive of the goods it was applied to, was generic, should not have been registered and was invalid. The stylised signature mark was allowed to remain on the register, but subject to the exclusion that the registration gave no proprietary rights to the word Bach itself.
The Court of Appeal robustly upheld the trial judge’s decision and refused the Defendant’s request to refer the case to the European Court of Justice.
The further application for permission to appeal led to a hearing in the House of Lords. The application was refused. The Defendant was ordered to pay all the Claimant’s legal costs. That was in 2000.
A similar, but not identical, situation had all this time prevailed in the Netherlands. After a short pause to recover its energy for further significant litigation, Healing Herbs and its indefatigable Managing Director, Julian Barnard, applied to revoke the word registration and the signature registration there. Paul Steinhauser (now of Arnold Siedsma) was the lead lawyer for Healing Herbs; Charles Gielen of Nauta Dutilh led for Flower Remedies.
At the trial, the Dutch court ordered all of the registrations to be revoked. The Dutch Court of Appeal agreed that the Bach word marks were generic and had not acquired distinctiveness through use and should be expunged from the Benelux Trade marks Register, but spared the signature registration, holding that it had a sufficiently distinctive nature so as not to suffer the same fate.
The Dutch Supreme Court has just upheld the Court of Appeal’s decision.
The case was unusual in a way different from its unusual subject-matter. As I trailed at the start, the different periods of time the English case and the Dutch case took to reach their conclusions were remarkably different.
The English case had started in 1996, the first instance decision was delivered on 22 May 1998, the Court of Appeal decision as given on 21 October 1999, and the House of Lords refused permission for a further substantive appeal in a hearing on 4 July 2000. So the English case took no more than four years from start to finish.
The Dutch case took ten years.
It started in 2002. The trial decision was on 30 June 2004. The Court of Appeal’s final judgement was given on 23 February 2010. The Supreme Court handed down its decision on 20 January 2012.
For Healing Herbs, it was worth waiting for – just !