No tell-all cash for Ash; Right Mann for the job

No tell-all cash for Ash

In Niema Ash and another v Loreena McKennitt and others [2006] EWCA Civ 1714, which you can read in full here on BAILII, the Court of Appeal today dismissed an appeal against the decision of Mr Justice Eady (noted by the IPKat here) that Loreena McKennitt's former friend Niema Ash could not make public details of privacy-conscious McKennitt's personal life.

Right: Loreena McKennitt keeping an eye out for breaches of privacy

Giving the lead judgment, Lord Justices Buxton (with whom Latham and Longmore LJJ concurred) carefully reviewed Eady J's approach towards the balance between Ash's freedom to tell her story, the public's interest in knowing it and McKennitt's entitlement to keep a major part of her private life free from public scrutiny. He also complimented the trial judge for the manner in which he dealt with the action, adding at para.81:

"This cannot have been an easy case to try, but the Judge succeeded in isolating the essential elements and producing a judgment that is of the greatest help in understanding the case without at the same time releasing into the public domain any of the matter that he rightly held should not be there".

The IPKat thinks this last comment is noteworthy. Where parties are known by initials like CC or AB (see recent IPKat blog here), you can say much more about the disputed facts than you can get away with when the parties' identities are known. Merpel agrees, but adds that sometimes it is quite possible to work out the identity of the concealed celebrity - as happened to the unfortunate footballer in one of the cases cited in this judgment, A v B.


Right Mann for the job

Hesco Bastion Ltd v TFL Defence Ltd and others, decided yesterday in the Chancery Division, is a ruling of Judge Martin Mann QC, sitting as a deputy judge of the High Court, the IPKat found a note on it on LexisNexis Butterworths. This is "Judge Mann", not to be confused with "Mr Justice Mann" who is a member of the Patents Court.

Hesco Bastion made and sold Hesco gabions for use in fortification and military engineering. These were cubes constructed of weld-mesh with geo-textile liners, filled with local stone and sand and then interconnected to form blast-wall systems. The gabions were usable for between two and five years, the geo-textile being given five year warranty.

In this action Hesco Bastion claimed that TFL was selling inferior gabions under the Hesco brand in the Middle-East, the Horn of Africa and Afghanistan (which were Hesco Bastion's markets). After TFL conceded the allegations of passing-off, the court had to decide as a preliminary issue (i) whether the samples adduced by Hesco Bastion in support of its action were fairly representative of TFL's counterfeit gabions and (ii) whether TFL's counterfeit gabions performed substantially worse under operational conditions than those of Hesco Bastion.

According to Judge Mann, in the absence of any credible evidence to the contrary, the samples Hesco Bastion brought to court would be regarded as typical of TFL's fakes. It was accepted that these gabions, being inferior, would perform less well in normal military use.

The IPKat recognises a problem here, particularly where a counterfeiter sources his fakes from different manufacturers which, producing goods of varying quality, can be expected to inflict different levels of damage to a brand owner's reputation. Merpel says - but what would have happened if TFL's fake gabions turned out to work better than Hesco Bastion's?

Click here to find out how to pronounce gabion