Consolidated Developments Ltd v Cooper

Appeals from trade mark proceedings are subject to the ordinary principles governing appeals under CPR Part 52. Fresh evidence is admitted only exceptionally. The Ladd v Marshall factors remain basic, applied in light of the overriding objective, although the nature of trade mark proceedings may make additional factors relevant. The Hunt-Wesson factors may also assist, but neither checklist is rigid. The decision in Gerry Webber International AG v Guccio Gucci SPA does not create a broad remedial discretion to reopen Registry proceedings. Where fresh evidence would require a rehearing, finality, prejudice, multiplicity of proceedings and the public interest assume particular importance. An appeal from the Registrar is not an opportunity to rerun factual arguments; a distinct and material error of law or principle is generally required.

Consolidated Developments Limited applied to revoke three trade marks owned by Andrew Cooper for non-use. The Hearing Officer revoked the marks, subject to retaining a limited specification for one mark covering the provision of advertising space on websites.

Mr Cooper appealed, seeking to introduce substantial additional evidence of use. CDL appealed against the finding that the retained advertising service had been genuinely used. The Appointed Person referred Mr Cooper’s appeal to the High Court under section 76(3) of the Trade Marks Act 1994. The central issues were whether the court had jurisdiction to admit the fresh evidence, whether it should exercise its discretion to do so, and whether the Hearing Officer had made an appealable error in accepting the invoice evidence.

1. Jurisdiction. The statutory “decision” for the purposes of section 76(1) of the Trade Marks Act 1994 is the Hearing Officer’s decision on the outcome of the applications, not merely the reasons supporting it. The court therefore had jurisdiction to admit additional evidence, although the exercise of that jurisdiction was discretionary.
2. Fresh evidence. The same principles apply as in other appeals under CPR Part 52. The three Ladd v Marshall factors are basic: reasonable diligence, probable material influence on the result, and apparent credibility. They must be applied in light of the overriding objective. The additional factors identified in Hunt-Wesson, including the nature of the mark and objection, the significance of the evidence, prejudice, multiplicity of proceedings and the public interest, may also be considered. Neither checklist is a straightjacket.
3. The admission of fresh evidence remains the exception. The additional evidence could have been obtained before the first hearing, was unlikely probably to alter the result, and would have required a rehearing. CDL would suffer significant prejudice, and finality in litigation and the efficient use of Registry resources strongly opposed admission. The evidence was therefore refused.
4. CDL’s appeal. The Hearing Officer was entitled to accept the invoices. There was nothing inherently incredible in Mr Cooper’s evidence, and procedural fairness would have required cross-examination before allegations of dishonesty could properly be advanced. The Hearing Officer sensibly evaluated the evidence without requiring proof to an excessive degree and gave adequate reasons. No distinct and material error of law or principle was shown.
5. Both appeals were dismissed.

The judgment states that Mr Cooper’s appeal from the Hearing Officer was referred to the High Court by the Appointed Person under section 76(3) of the Trade Marks Act 1994. The Hearing Officer’s decision itself is not given a neutral citation. The High Court dismissed both appeals.