Wise after the event

If you search the Scottish Courts website under "intellectual property" you won't find this -- which is why the IPKat missed it on his prowl -- but Wise Property Care Limited v White Thomson Preservation Limited and others [2008] CSOH 46, a passing-off decision of Lord Matthews (Outer House in the Court of Session), was posted on the Scottish Court website this morning. The Kat thanks his friend and fellow runner Gill Grassie of Maclay Murray & Spens for this vital piece of information).

In this action the Pursuer [says the IPKat: that's the Scottish term for 'claimant' or 'plaintiff'] White Preservation, a trading division of Wise Property Care, successfully defended an application for recall of interim interdict (interim injunction) which had been granted without notice against White Thomson Preservation Limited and others. Says Gill (you'll have to do the delightful Scottish lilt yourself when you read it out):

"You will see that the case has a complex background borne out of a family dispute where the surname of the brothers involved was 'White'. The Pursuer successfully argued that the Defenders' use of the name White Thomson Preservation Limited was confusingly similar to their trading division 'White Preservation' and that the Defenders' use of that name passed off their business and services as those of the Pursuer.

As ever it's the facts that make the case quite interesting, with the Defender trying to pick up and run with goodwill which, he was effectively saying, had been lying dormant. The suggestion that this somehow gave him a defence to passing off which is assessed on an objective basis was quite rightly rejected by the judge. It is good to see the Scottish courts (and in particular recently appointed Court of Session judge) taking such a firm approach at an early interim stage of an action".

The IPKat says, it's depressing to see that passing-off actions in Scotland are as wordy and as fact-specific as their counterparts in England and Wales. This suggests a universal truth that, where IP is protected at the level of unregistered names, the courts do not so much apply the law to the facts as determine the nature of the facts and thereby establish the parameters of the law. Merpel says, but itsn't "justice in the individual case" something we strive to achieve?