Riemann & Co & Ors v Linco Care Ltd

On an application for an interim injunction, where there is an arguable case, the principal question is the balance of convenience rather than a mini-trial of the merits. The court should compare the risks of irremediable harm to each party, consider other relevant factors, and assess the relative strength of the cases only where it assists. The status quo may be unhelpful where the allegedly wrongful conduct began before discovery and proceedings. Fairness may favour relief where withholding an injunction would expose one party to substantially greater consequences if it later succeeds at trial. An interim injunction does not express a view on the merits or the restrained party’s conduct.

The claimants sought an interim injunction pending trial concerning two Community trade marks for P20 sun protection products. They alleged that the defendant’s rival C20 product infringed the marks under Articles 9(1)(b) and 9(1)(c) of the Community Trade Mark Regulation and amounted to passing off.

The defendant had altered its packaging after a letter before action and had given undertakings concerning the original form. The remaining application concerned the modified product and the balance of convenience during the 2007 sales season. The court also considered the appropriate costs order and directions for a speedy trial.

1. Interim relief. The defendant accepted that the claimants had an arguable case under Articles 9(1)(b) and 9(1)(c) and passing off. The application therefore turned on the balance of convenience.
2. The court assessed the risk of irremediable harm if relief were withheld against the corresponding risk if relief were granted. Continued sales might cause loss that would be difficult to quantify and might establish a platform of goodwill for later sales. The defendant’s loss of sales was more readily quantifiable, and existing stock was not required to be withdrawn.
3. The court treated the alleged risk that retailers would misunderstand an interim injunction with reserve. It was wrong in principle to withhold otherwise justified relief merely because third parties might misinterpret the order. The asserted permanent abandonment of the C20 name was a triable issue, not a reason to refuse relief.
4. The status quo was unhelpful because the complained-of conduct had begun and become established before the claimants discovered it. The relative strength of the cases did not materially assist. Absence of evidence of actual confusion might affect the claims under Article 9(1)(b) and passing off, but confusion was not necessary under Article 9(1)(c).
5. Although the balance of convenience marginally favoured an injunction, fairness also supported relief. If relief were refused, a successful claimant would lose substantially the whole season, whereas an unsuccessful defendant would suffer no restraint caused by the court. An injunction was therefore granted, subject to precise terms preserving supplies already contractually committed as at notification of the order and excluding the current leaflet except for use of C20.
6. The claimants obtained half their costs payable in any event, with the remaining half costs in the case. An interim payment of £14,000 was ordered. A speedy five-day trial was directed, with trial-window and case-management directions.

This was a first-instance interim application. At an earlier hearing before Mann J. on 8 May 2007, the defendant gave undertakings concerning the original packaging pending the present hearing. Mr Justice Briggs subsequently granted interim relief concerning the modified C20 product and directed a speedy trial.