Fifthly, it is sufficient for goodwill to exist in the United Kingdom that the claimant has customers or ultimate consumers for his goods here, and for this purpose it is immaterial whether the claimant (a) has some branch here or (b) trades directly with customers here without having any physical presence in the jurisdiction (for example, by mail order) or (c) trades through intermediaries such as importers and distributors (provided that the circumstances are not such that the goodwill is owned by the intermediary) …, 217. The same usage appeared on CGS's stationery, usually accompanied by its logo of a stylised line drawing of a barman pouring out three cocktails. 85 For these reasons, although I differ from the judge in regarding a trading name as potentially protectable under Art.12(a), I conclude that the judge was right to hold that the defence under Art.12(a) was not made out by the defendants, and that the Cipriani CTM was therefore infringed. Hotel Cipriani Srl -v- Cipriani (Grosvenor Street) Limited [2010] RPC 16 -foreign business and English goodwill in passing off claims. It was probable that such reservations were being made by telephone prior to April 1996. H4 The first defendant (first appellant) (“CGS”) had since April 2004 operated a restaurant which was commonly referred to simply as Cipriani (“the Restaurant”), although its formal name was Cipriani London. Many UK consumers reading or hearing a reference to “Cipriani” or “the Cipriani” in the context of hotel or restaurant services would assume this to be a reference to the hotel unless the context indicated otherwise; (4) some of the products of the Cipriani food production business have been distributed in the UK since the early 1990s. Another factor to be taken into account when making the assessment is whether the trade mark concerned enjoys a certain reputation in the Member State in which it is registered and its protection is sought, from which the third party might profit in marketing his goods or services (Anheuser-Busch, para.83). I-7041. He also held that the defendants’ sales would not cause any damage to the plaintiffs. 20 were here. Passing off is a common law tort or civil wrong. The same applied to the use of Cipriani London, which was, in fact, the trading name adopted by the first defendant and which did count as its “own name” for this purpose. Long considered one of the leading luxury hotels of the world, its room rates begin at USD $1,400 per night. H10 When he sold his shares in HC to OEHG’s predecessor in title in 1967, GC senior agreed that the company and the Hotel Villa Cipriani would have the right to use the name 'Cipriani' on an exclusive basis, even after any participation by him or his family in the capital of the company had come to an end, and even in the event that he or his son ceased to be on the company's board of management, (with a saving for the Locanda Cipriani). 29 It also has CTM and UK registrations for Hotel Cipriani, but nothing turns on these. The court considered an “own name” defence to passing-off and rejected it, and later rejected the same defence to trade mark infringement for the same reasons. 12 Harry’s Bar has, or had, two related ventures in Venice, which it is convenient to mention now, out of chronological sequence. H43 (16) The judge had been correct in holding that the first claimant did have goodwill in the United Kingdom on the basis that, in April 2004 (the relevant moment for passing-off) it had a substantial reputation in England and a substantial body of customers from England, in part as a result of significant marketing efforts directed at the relevant public here, and a significant volume of business was placed directly from this country, either by individual clients by telephone or the like, or via travel agents or tour operators. Such business may be carried on in one place or country or in several, and if in several there may be several businesses, each having a goodwill of its own.”. The judge recorded the principal dispute between the parties, and his decision in favour of the claimants, in his paras.100 and 101, as follows: “100. The House of Lords affirmed the decision of the Court of Appeal that the goodwill was property locally situate outside the UK. That, therefore, could not justify a finding of goodwill in England in relation to the CIPRIANI mark. 71 It does not seem to me that these observations provide any assistance, even indirect, as to what does or does not amount to an “own name” in the present context, even though the court did, at para.21, refer to the distinction between a company name and a trade or shop name. 27 The first claimant is the registered proprietor of CTM number 115824, with effect from 1 April 1996, for the word Cipriani in respect of goods and services which include: “Hotels, hotel reservation, restaurants, cafeterias, public eating places, bars, catering; delivery of drinks and beverages for immediate consumption.”. In practice there would have to be significant actual deception – mere possibilities of confusion, especially where ameliorated by other surrounding circumstances (mere aural confusion but clearly different bottles) can be within honest practices. On that basis it was clear that the international reputation of Hotel Cipriani, and the use of the mark CIPRIANI, was something that brought in business from England – it was an attractive force that brought in English custom - and accordingly the business had goodwill in England at the relevant time. After the war it was developed into a hotel with six rooms and a restaurant with a garden. The name was taken from Mr Pickering’s first name. H30 (3) Testing the position as at April 1996, and in relation to the European Community, it was noteworthy that there was at that time no use of the mark CIPRIANI in relation to hotels or restaurants in Europe other than by the first claimant, the Hotel Villa Cipriani and the Locanda Cipriani. Premier Luggage & Bags Ltd v Premier Co (UK) Ltd [2003] F.S.R. If so, the rule that a company can only rely on its corporate name is not absolute. It seems to me that this is, and ought to be, correct. The likely objection would not be too broad nor would it be unjustified, subject only to the question of the own name defence. 57 The Cipriani CTM is therefore valid, and the next question is whether it is infringed by the first defendant. Once it is found that there are customers, it is open to find that there is a business here to which the local goodwill is attached; D. To the extent that the Crazy Horse case is authority to the contrary, I prefer not to follow it.”. ([106])]. In its agreed translation it was as follows (“You” means Giuseppe Senior): “3.1. The claimants also alleged that CGS’s use of the sign CIPRIANI LONDON infringed the CTM registration pursuant to Arts.9(1)(b) and (c) of the Regulation, but accepted that if the claim under Art.9(1)(b) failed, they could not succeed under Art.9(1)(c). The case concerned the liability, or not, to stamp duty of an agreement made in the UK. Although the limitation to any hotel or restaurant business is not explicit, the claimants say it is implicit. 39] that a man may use his own name even if there is some actual confusion with a registered trade mark. Star Industrial Co Ltd v Yap Kwee Kor [1976] F.S.R. Reed Executive plc v Reed Business Information Ltd [2004] R.P.C. Spa; Golf; Beach; Diving; Ski; No result for this search. The evidence relied on by the defendants in this respect was very limited and indirect, and it was not surprising that the judge found it of little assistance or persuasive weight. Further, as the judge also pointed out, because a company can choose to adopt any trading name, there could be an own name defence in almost every case if Mr Bloch were right. For the most part I will do so in historical sequence. 89 Mr Thorley contended that the defendants were exploiting their own goodwill in the name Cipriani, not trading on that of Hotel Cipriani, and that, as regards the word Cipriani, there was concurrent reputation in April 2004. C-100/02 Gerolsteiner Brunnen GmbH & Co v Putsch GmbH [2004] E.C.R. The first defendant’s use of the name protected by the Cipriani CTM has to be justified by reference to its circumstances, not those of any other person. Giudecca 10, 30133 Venice, Italy, Nous aimerions que vous nous fassiez part de votre expérience avec nous. There is no such defence under s.56. I-691, [2004] R.P.C. As regards legal protection under national law, he relied on his arguments about passing-off, pursuant to which he argued that the Cipriani group of companies would have been able to restrain third parties from using the Cipriani mark in relation to hotels or restaurants, just as much as the first claimant could have done. He had already said at para.42 (in the context of passing-off): “The fact that it has chosen to adopt the trading name of William R. Asprey Esq. The Restaurant was listed in at least some guidebooks as “Cipriani”, for example in the 2005, 2006, 2007 and 2008 editions of the Good Food Guide. The plaintiff sought an injunction against passing-off. He said there was no evidence of their having been patronised by significant numbers of British tourists by April 2004 and still less by April 1996, nor was there any evidence of direct bookings from the UK (para.61). 40, CA referred to. ([119],[120]), H45 (18) It was necessary to show more than the defendants had managed to show in order to establish goodwill in England for a mark used by a business based abroad for services which it supplied abroad. So when the business is abandoned in one country in which it has acquired a goodwill the goodwill in that country perishes with it although the business may continue to be carried on in other countries. ([52],[53]). It seems to me that in the statute the distinction drawn is between what from a British point of view we should call British property and foreign property; and the goodwill of a business which begins and ends abroad is, I think, property locally situate outside the United Kingdom.”. 117 In Budweiser in relation to sales of beer, the court regarded it as necessary that, in addition to an international reputation, there should have been significant sales of the product in this country. All will turn on the overall circumstances of the case.”. 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It is owned and run by the first claimant in these proceedings, Hotel Cipriani Srl, which is part of the Orient Express group. The first defendant is using the sign Cipriani, which is identical with the Cipriani CTM, in relation to services which are identical with some of those for which the Cipriani CTM is registered. He distinguished Sheraton on the basis of the office in this country and the direct bookings, for which there was no equivalent in his case. There could have been no suggestion that the registration precluded the Hotel Villa Cipriani or the Locanda Cipriani from continuing to use their names. The second defendant, to whom I will refer (meaning no disrespect) as Giuseppe, is the sole director of the first defendant. That seems to me to be the correct basis for the decision in Asprey & Garrard, by which Peter Gibson L.J.’s observations in paras.43 and 49 can stand together, permitting the possibility of an established trading name which might allow successful use of the defence, whereas a brand new corporate name or trading name would not do so, and certainly did not on the facts of that case. I do not see why it should not do so, nor why, if it did so, that trading name should not be eligible for the protection of Art.12(a). He then referred to Budweiser itself, and drew from this and the other cases conclusions which he expressed as follows, at page 58: “A. They used Cipriani on its own, and no steps were taken, even after the claimants' objection, to prevent or correct the use of the abbreviation by third parties, in the media or otherwise. ([55]), H31 (4) The judge’s treatment of the issue of bad faith had been comprehensive and thorough, providing for a number of possible outcomes on the facts. In that way his submissions seek to test the question of law as to what is necessary for the reputation of a business abroad and its mark to qualify as goodwill in this country in two ways: first, is what the claimant can show sufficient? The defendants in turn sought an injunction to stop the plaintiffs from selling beer as Budweiser unless it was brewed by the defendants or otherwise originated from the town of Budweis. H26 On appeal, the defendants challenged the judge’s decision that there had been passing off on the basis of the rule for determining whether a business based abroad which supplied services abroad had goodwill as well as a reputation in the United Kingdom. Anheuser-Busch Inc v Budejovicky Budvar NP [1984] F.S.R. Directly or indirectly, CI wholly owned Altunis and a number of other companies, including Cipriani SpA, Cipriani Industria Srl, Cipriani International Group SA and Cipriani USA, Inc and owned 60% of CGS. 40 at para.116(iii) Jacob L.J. On that basis he held that the first claimant had proved that it had not merely a substantial reputation but also a valuable goodwill in this jurisdiction in respect of the name Cipriani. Already much earlier, from about 1989, bills issued to customers at Harry’s Dolci, and probably at Harry’s Bar as well, were headed with the logo, the word Cipriani in a box, a reference to Harry’s Bar (or Harry’s Dolci, as the case may be) and the name and details of Arrigo Cipriani Srl, and with names, addresses and telephone numbers of other Cipriani enterprises including Cipriani Catering. Harry Cipriani opened in 1985, ran until 1987 and then reopened in 1991. ([51]), H29 (2) Whether an application to register a CTM had been made in bad faith had to be determined as at the time of the application for registration and the intention and state of mind of the applicant at the time. 1 There is in Venice a famous and luxurious hotel, Hotel Cipriani. Several of their criticisms were based on their prior argument about concurrent user. However, it does not seem to me that it is necessary or appropriate to adopt a general principle such as that in order to decide this appeal. H17 The defendants also sought a declaration of invalidity in respect of the claimants’ UK registration relying on ss.3(6) and 5(4)(a) of the Trade Marks Act 1994, although there was no allegation of infringement respecting this mark. This raised the issue where, in reliance on the goodwill generated by the use of the word CIPRIANI by the Restaurant from 2004, the first defendant could have restrained the use by the claimants of the same word in the UK in October 2006, the time of the application for registration. He referred to Lord Diplock’s judgment in Star Industrial Co Ltd v Yap Kwee Kor. On that basis, subject to two points, what the defendant is doing infringes the first claimant’s rights under Art.9(1)(a) of the CTM Regulation (CTMR) (or, to give it its official name, Council Regulation of 20 December 1993 on the Community Trade Mark, 40/94/EEC). H13 For many years Hotel Cipriani had been a world famous hotel and had been patronised by many celebrities, politicians and royalty. The plaintiff owned, ran and promoted a chain of hotels in the USA and elsewhere, but not including any hotel in the UK. No question arose in that case of the use of a name other than that of the trader in question (omitting the suffix SA). Also in Venice, and also famous, is a bar and restaurant called Harry’s Bar. How does the matter stand when one is considering not goods but services? Again, if the facts as to the distribution of the products were more complicated, as, for example, if the trade were diffused over England and other countries, then the location of the goodwill would be a more complex, although I do not by any means think an insoluble, problem. It gives no right to any monetary remedy. They used Cipriani on its own, and no steps were taken, even after the claimants’ objection, to prevent or correct the use of the abbreviation by third parties, in the media or otherwise. Its luggage products were similar to those of the claimant, but they carried the pcl logo, and swing tags as well as brochures and stationery carried the full correct name of the defendant. Histoire. I therefore decide the case on the basis indicated above, without wishing to prejudice an argument in a later case that the true test may be wider, other than to the extent of my decision that, whatever the exact test may be, the defendants do not pass it. H8 The involvement of the Cipriani family in the restaurant and hotel business began in 1931 when GC senior founded Harry’s Bar in Venice. H33 (6) The Art.12(a) defence could be available in respect of a trading name, as well as the corporate name of a company, but it would depend on (a) what the trading name was that had been adopted, (b) in what circumstances it had been adopted and (c), depending on the relevant circumstances, whether the use was in accordance with honest practices. 22 As I have said, Giuseppe Senior sold his interest in the hotel in Venice to the Guinness family interest. The prior use is that of the Restaurant from April 2004 to October 2006 (the registration date for the UK trade mark). The first claimant opposed both applications, relying on its own various registrations including the Cipriani CTM. It is a thing very easy to describe, very difficult to define. 2 Hotel Cipriani Srl is the holder of Community Trade Marks in respect of the word Cipriani and the phrase Hotel Cipriani in respect of goods and services including in particular hotels, restaurants, bars and catering. 40, CA. Athletes’ Foot Marketing Associates Inc (The) v Cobra Sports Ltd [1980] R.P.C. H24 In relation to the ‘own name’ defence under Art.12(a), it was common ground that this defence was available to legal as well as to natural persons and that for a legal person to rely on this defence, it was not necessary for it to use elements of its name such as “Ltd”, “plc” which merely indicated a particular form of legal personality. No evidence has been adduced that the defendants were advised by a properly qualified person with proper instructions that they would not infringe the CTM.”. The defendants also challenge the factual findings of the judge, though only as regards his failure to draw inferences in their favour in certain respects, corresponding, it is said, to inferences which he did draw in favour of the first claimant. The products had a good but not extensive reputation in the UK in 1996 and in 2004; and (5) the Cipriani restaurants in New York had been popular with international celebrities at least since 2000, and this led to exposure in the British media and to a reputation in the UK, but the extent of this was difficult to judge. If the claimants’ Cipriani mark is “well-known” for this purpose it gives a right to an injunction to restrain the use of an identical or similar trade mark in relation to identical or similar goods or services “where the use is likely to cause confusion”. Pete Waterman Ltd v CBS United Kingdom Ltd [1993] E.M.L.R. That being so, I find it difficult to see why a corporate entity should not be able to do so, if it can show that it uses a distinct name for trading purposes. It makes perfect sense that Belmond Hotel Cipriani was dreamed up in the era of such classic, romantic Italian films as Roman Holiday, Three Coins in the Fountain and Summertime. 50 Mr Thorley submitted that all of (a) Hotel Cipriani (b) Locanda Cipriani (c) Hotel Villa Cipriani (d) Harry’s Bar and (e) the Cipriani restaurants in New York had a reputation in the UK in April 2004 by reference to the name Cipriani, and that accordingly there was a concurrent reputation in that name as regards hotels and restaurants. The defendants advanced the own name defence under Art.12(a) of the Regulation and also counterclaimed for a declaration of invalidity under Art.51(b) (bad faith) of the Regulation. Hotel Cipriani Srl is the holder of Community Trade Marks in respect of the word Cipriani and the phrase Hotel Cipriani in respect of goods and services including in particular hotels, restaurants, bars and catering. The defendants contend, in short, that these words merely mean that the Company and Hotel Villa Cipriani have the exclusive right to use the name Cipriani in relation to those hotels (i.e. 34 The issue here is whether, in reliance on the goodwill generated by the use of the word Cipriani by the Restaurant from 2004, the first defendant could have restrained the use by the claimants of the same word in the UK in October 2006, the time of the application for registration. In my judgment the claimants’ interpretation is to be preferred. Maxim’s Ltd v Dye [1977] F.S.R. 96 In turn, Lord Lindley (who had no doubt had to consider the issue of goodwill in the course of his work on partnership law) said this at page 235: “Goodwill regarded as property has no meaning except in connection with some trade, business, or calling. The judge found that the first claimant had the goodwill necessary for a passing-off claim, but none of the defendants did, nor did any other related entity. Wadlow proposes a test as follows: “It is now suggested that a service business operating from a place or places abroad has customers and therefore goodwill in England to the extent that persons from England consciously seek out and make use of its services in preference to those available from competitors in England or elsewhere. As regards the Hotel Cipriani, first, he had evidence that in April 2004 there had been such direct bookings for some time past, and that the hotel had been popular with visitors from the UK for a long time. It succeeded in its opposition as regards the Cipriani Service mark, and as regards the Cipriani Food mark it was able to secure that the registration was limited to certain foodstuffs. The word Cipriani appeared on bills at Harry’s Bar and Harry’s Dolci, but that cannot be regarded as significant in the context. Court of Appeal, HOTEL CIPRIANI SRL v CIPRIANI (GROSVENOR STREET) LTD, Reports of Patent, Design and Trade Mark Cases, Volume 127, Issue 7, July 2010, Pages 485–521, https://doi.org/10.1093/rpc/rcq027, H1 Trade mark—Community trade mark—“CIPRIANI” used for hotel in Venice—Defendants’ use of sign in relation to restaurant in United Kingdom—Infringement—Appeal to Court of Appeal—‘Own name’ defence—Whether available for a trading name—Whether use in accordance with honest practices—Validity—Whether CTM application made in bad faith—Whether bad faith to apply for mark where third parties use same distinctive feature—Passing Off —Reputation—Goodwill—Foreign hotel—Whether sufficient to have customers in the United Kingdom—Observations on whether test should be updated, H2 Trade Marks Act 1994, ss.3(6), 11(2)(a), 56, Council Regulation 40/94, Arts.12, 51(1)(b). Or virtual absence, or purchase an annual subscription 2004 to October 2006 ( the registration precluded the hotel.... 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