Ghias (t/a Griller) v Ikram (t/a the Griller Original)

For infringement under section 10(2) of the Trade Marks Act 1994, the court must assess the similarity of the signs and relevant services as a whole, while identifying any dominant component. Identical services and a shared dominant word may create a likelihood of confusion even where the signs contain additional words, backgrounds or design features. Those additional features must nevertheless be considered. An appellate challenge has no real prospect of success where the first-instance judge applied that approach carefully and reached a conclusion open on the evidence.

Mr Waseem Ghias, proprietor of registered trade marks including a device mark consisting of the word “Griller” with flame effects, sued Mr Mohammed Ikram and Griller Original Limited for trade mark infringement. The Patents Court held that the defendants infringed the logo under section 10(2) of the Trade Marks Act 1994, but rejected claims under sections 10(1) and 10(3), and found Mr Ikram personally liable as a joint tortfeasor from 24 May 2011.

Mr Ikram sought reconsideration of a refusal of permission to appeal. He challenged the findings on the identity of the services, similarity of the signs and likelihood of confusion, and raised further allegations concerning the claimant and solicitors. The central issue was whether the proposed appeal had a real prospect of success.

1. Application refused. The proposed appeal had no real prospect of success.
2. Allegations that the claim was motivated by a grudge, that the claimant traded unfairly, and that solicitors had colluded were unsupported, not raised at trial, or irrelevant to the issues decided below. They could not provide a proper basis for permission to appeal.
3. The Recorder had correctly confined the finding of infringement to section 10(2) of the Trade Marks Act 1994. The challenges based on sections 10(1) and 10(3) disclosed no arguable error because infringement had not been found under those provisions.
4. For section 10(2), the relevant services were correctly found to be identical because they fell within the specifications of the registrations. The Recorder had carefully assessed visual, aural and conceptual similarity, together with the nature of the services, the average consumer and the distinctiveness of the marks.
5. A composite logo must be considered with all its components, including flame effects, but one component may be dominant. The Recorder was entitled to find that “Griller” was the dominant component of the logo and the challenged signs, and that the additional words “The” and “Original” were too unobtrusive to prevent confusion. The absence of flame effects likewise did not preclude a likelihood of confusion.
6. The Recorder’s findings were open to her on the evidence. The application was accordingly refused.

• Court of Appeal (Civil Division): On 20 February 2013, Lord Justice Kitchin refused the oral application to reconsider the paper refusal of permission to appeal.
• Patents Court: Miss Recorder Amanda Michaels’ decision handed down on 24 January 2012 found infringement of the logo under section 10(2) of the Trade Marks Act 1994, rejected the claims under sections 10(1) and 10(3), and found Mr Ikram liable as a joint tortfeasor from 24 May 2011.
• Permission stage: Permission to appeal had previously been refused on the papers by Mummery LJ on 10 August 2012.