Entain Operations Limited & Ors v Liquidity Trading Limited & Ors

Copyright claimants must plead a complete cause of action and the facts enabling the defendant to know the case to meet. Each work and each claimant’s title to sue must be identified. Brand acquisition, trade mark registration, long use and absence of a competing claim do not, without more, establish copyright ownership; an exclusive licence requires a properly pleaded owner, licensee and basis. For evolving logos and websites, the claimant must identify the original features of the current iteration and explain why they are original, rather than recite the statutory formula. A website may be pleaded as a whole at a particular time, but the screenshot is not itself the work. Statutory presumptions require particulars showing their basis. Introductory defence narrative is permissible, and confusion may be relevant to trade mark defences without a standalone confusion claim, but a mistaken reliance on section 10(2) is not.

This first-instance decision arose from intellectual property proceedings concerning trade marks, logos and websites used in matched-betting and casino-offer services. The claimants alleged trade mark infringement and copyright infringement. The defendants applied to strike out the copyright allegations, contending that the pleadings failed to identify the works, original features, authors, qualification, ownership and chain of title.

The claimants applied to strike out parts of the defence and counterclaim, including introductory narrative, references to confusion, a reference to section 10(2) of the Trade Marks Act 1994, and conditional pleas concerning newer marks still within their non-use grace periods. The central questions were whether the copyright claim disclosed a complete cause of action and whether the challenged trade mark pleadings were sufficiently relevant and arguable.

The court granted the Defendants’ Application in relation to the copyright claim, subject to the claimants being given a short opportunity to serve compliant amended particulars. The claimants’ application succeeded only to the extent that the reference to section 10(2) of the Trade Marks Act 1994 had to be deleted.

1. Pleading standard. Particulars of claim must state all facts necessary to formulate a complete cause of action and to enable the defendant to understand the case, prepare disclosure and evidence, and prepare for trial. The court may strike out inadequate particulars under CPR 3.4(2)(a)–(c), or make the order conditional on correction. The court applied the principles discussed in Conticorp SA v Central Bank of Ecuador [2007] UKPC 40, King v Stiefe [2021] EWHC 1045 (Comm) and Prudential Assurance Co Ltd v HMRC [2016] EWCA Civ 376.
2. Title to sue. Each claimant had to identify which particular claimant owned each work or was its exclusive licensee. Collective pleading that the claimants owned the logos and websites was insufficient. Acquisition of brands, registered trade marks, extensive use and absence of a competing claim did not establish copyright ownership. An express assignment was generally required for copyright acquired with a business under section 90 of the Copyright, Designs and Patents Act 1988. Long use did not defeat another owner’s claim, consistently with Fisher v Brooker [2009] UKHL 41. An exclusive-licensee case also required identification of the copyright owner, the relevant licensee and the basis of the licence, with the owner joined where necessary.
3. Subsistence and originality. A website could potentially be pleaded as a single artistic graphic work represented by its layout at a particular time, and an exact copy might infringe despite limited originality in the latest iteration. However, for evolving logos and websites the claimants had to identify the original features of the current version and the factual basis for originality. A recital of the statutory test was insufficient. The court treated Lidl Great Britain Ltd v Tesco Stores Ltd [2024] EWCA Civ 262 and Lidl Great Britain Ltd v Tesco Stores Ltd [2023] EWHC 873 (Ch) as materially distinguishable because the present case involved multiple claimants, multiple works and unresolved ownership issues.
4. Qualification and presumptions. The pleading of qualification under sections 154 and 155 of the Copyright, Designs and Patents Act 1988 was sufficient in principle, and any missing publication detail was curable. By contrast, reliance on the presumptions in section 104 required particulars showing why they applied, including the relevant first publication and publisher where applicable. A bare reservation to rely on those presumptions was inadequate.
5. Claimants’ Application. Introductory trade mark narrative was not automatically objectionable, since CPR 16.5(1) did not require a defence to respond exclusively paragraph by paragraph. References to confusion could be relevant to the origin function, referential use, honest practices and the link required under section 10(3) of the Trade Marks Act 1994, even without a standalone confusion claim. The reference to section 10(2) was a mistake and was to be removed. Conditional pleas concerning the newer marks were retained, but permission to amend the prayer would be required before relief could be sought.
6. Conditional observation. Had the copyright claim survived, bare introductory pleas of fair dealing, abuse of rights, freedom of expression and the effect of the Retained EU Law (Revocation and Reform) Act 2023 would likely have required strike out or redrafting and repositioning. That observation was not necessary to the decision.