The owners of the estate agents ‘Fine & Country’ have obtained an injunction in the High Court to prevent the ‘Fine’ brand being used for an estate agency, in its current guise at least.
Fine & Country Limited, GPEA Limited and FCEA Limited own the Fine & Country name and trademarks. They licence the right to use the name and trademarks, along with certain other facilities, to local independent estate agencies so that they may operate within the premium property market.
In 2009 the premium property estate agents Finehaart was rebranded to ‘Fine’. Okotoks Limited and the Spicerhaart Group Limited are companies in a group which operates a number of estate agencies, including Fine.
In 2010 Fine & Country issued court proceedings against Fine, seeking an injunction prohibiting the current use of the Fine brand, alleging that it was causing confusion in the market place because the ‘Fine’ brand appeared very similar to the ‘Fine & Country’ brand.
In a 69 page judgment given on 31 July 2012, following a 10 day trial in March, Mr Justice Hildred confirmed that he was persuaded that the Claimants had the benefit of goodwill in the Fine & Country brand and trademarks and that the Fine brand was sufficiently similar to cause confusion and to risk drawing custom away from Fine & Country as a result.
In reaching his conclusions he placed particular emphasis on the evidence of four customers of Fine & Country licensees who gave evidence of their own confusion, with one witness instructing Fine in error. The Judge was also influenced by the defendants’ own internal emails and correspondnece from the time of the re-brand to Fine, which, in his view, pointed to an acceptance by the defendants that there was a similarity and a risk of confusion and to a conscious decision to ‘live dangerously’ as to that risk.
The judgment was given notwithstanding that the confusion was in the minds of the claimants’ licensees’ customers, not in anyone dealing with the claimants direct, and also Fine & Country’s own evidence that their profits had not been affected by the rebrand to Fine in 2009.
As a result of the judgment, the defendants will have to cease to use the Fine brand and may have to pay damages or account to the claimants for some of their profits. Having traded for three years while the litigation progressed, these sums could be significant. The combined legal bill certainly will be.
In challenging times, particularly for businesses in the property market, this case is a timely reminder that competition must be fair and there are remedies available to businesses whose goodwill is threatend by competitors who are guilty of sharp practice.