Hugo Cuddigan KC

Lufthansa Technik AG v Astronics Advanced Electronic Systems & Anor [2026] EWCA Civ 964

This was the most significant account of profits in a patent infringement action to come before the higher courts in recent years. The case concerned mains voltage power supplies in passenger airline seats. The appea...

This was the most significant account of profits in a patent infringement action to come before the higher courts in recent years. The case concerned mains voltage power supplies in passenger airline seats.

The appeal engaged three important issues of law.

First, the Court of Appeal decided the proper approach to causation in an account of profits under s.61(1)(d) Patents Act 1977, by answering the question how does one ascertain the profits derived from the infringement? The Court held that apportionment is normally the appropriate approach ([111]; [159]), but that a ‘differential profits’ approach may in some cases be a useful tool [160]. In either approach, the Court held, contrary to the interpretation placed upon the House of Lords’ decision in United Horse Shoe and Nail Co v Stewart by Laddie J in Celanese International v BP Chemicals, that it is permissible for the court to consider whether there were any non-infringing alternative courses of action by which the defendant could, in the counterfactual, have made some or all of the profits it actually made [101].

Second, the Court of Appeal considered the question of the award of interest on a sum payable on an account of profits, holding that simple interest was available from the date on which the profits were accrued both under the court’s equitable jurisdiction [290], and under s.35A(1) Senior Courts Act 1981 [302].

Third, the Court considered the proper interpretation of s.67 Patents Act 1977 and the rights of an exclusive licensee to recover an infringer’s profits. The Court held that insofar as a defendant carries out acts of infringement of the rights of an exclusive licensee as such, then it is the exclusive licensee, not the patentee, who is entitled to claim the infringer’s profits derived from those infringements, and that in a case brought by a patentee under s.61(1)(d) the court must take into consideration the rights of any exclusive licensee ([257]-[258]).

Hugo Cuddigan KC and Christopher Hall acted for the patentee, Lufthansa. Iain Purvis KC and Piers Acland KC acted for the defendants, Astronics, Safran and Panasonic.

[2026] EWCA Civ 964

Getty Images (US), Inc. and others v Stability Al Ltd [2025] EWHC 2863 (Ch)

Following trial in June 2025 the High Court's judgment has now been handed down in the Getty Images v Stability Ai litigation, neutral citation [2025] EWHC 2863 (Ch). The case has been described as 'the first major copyr...

Lufthansa Technik AG v Astronics Advanced Electronic Systems & Anor (Re Interest) [2025] EWHC 1034 (Pat)

This judgment concerns the question of whether as a matter of principle ancillary interest may be awarded upon sums found due in an account of profits for patent infringement. The defendants had each been held liable...

Lufthansa Technik AG v Astronics Advanced Electronic Systems & others [2025] EWHC 375 (Pat)

This is the judgment in an account of profits following the liability trial ([2020] EWHC 1968 (Pat)) concerning infringement of Lufthansa’s patent for an aircraft passenger in-seat power supply system. Astronics manufact...

Hill v Touchlight [2025] EWHC 107 (Pat)

Dr Hill was an expert in thermophilic proteins with a background in DNA cloning and vaccine technology. She conceived a method of making “doggybone DNA”, in which a specific enzyme – known as a “protelomerase” – was used...

Lidl v Tesco [2024] EWCA Civ 262

The Court of Appeal has just handed down its much anticipated judgment in Lidl v Tesco. This was an appeal from the decisions of Mrs Justice Joanna Smith in [2023] EWHC 873 (Ch) (liability) and [2023] EWHC 1517 (Ch) (fo...

The Court of Appeal has just handed down its much anticipated judgment in Lidl v Tesco. This was an appeal from the decisions of Mrs Justice Joanna Smith in [2023] EWHC 873 (Ch) (liability) and [2023] EWHC 1517 (Ch) (form of order), concerning the use by Tesco of the blue and yellow Clubcard sign and Lidl’s earlier rights in the Lidl logo. At first instance, Lidl succeeded in its claim for trade mark infringement, passing off and copyright infringement, however several of its Wordless Mark Registrations were invalidated on the ground of bad faith. The Judge also held that Lidl should be granted an injunction to restrain copyright infringement in any event.

The appeal was heard by Lewison, Arnold and Birss LLJ, and focused primarily on Lidl’s contention that the Clubcard signs conveyed the message of price matching with Lidl. Arnold LJ gave the main judgment, in which he dismissed Tesco’s appeal against the findings of trade mark infringement and dismissed Lidl’s appeal against the Judge’s finding of bad faith. The Court allowed Tesco’s appeal on the issue of copyright infringement. Birss LJ gave a short judgment in which he adopted a different analysis on detriment for the purposes of s.10(3), and in particular reinforced the proposition that a case of infringement for detriment to distinctive character cannot be made out solely on the basis of a “pure dilution” argument.

The judgment contains a useful summary of the applicable law in relation to all causes of action. Further, Arnold LJ engaged in a detailed consideration of the role and proper assessment of different types of evidence in trade mark and passing off cases. The judgment raised several interesting points:

surveys carried out prior to litigation and for non-litigious purposes can be relied on without the permission of the court and even if they are not statistically significant;
a judge is entitled to rely on evidence given by real consumers insofar as they assist the court in ascertaining the perception of the average consumer;
the judge is entitled to rely on evidence the admissibility of which is not objected to by the other side;
it is reasonable to infer, in the absence of an alternative explanation, that a price-matching perception was due to the similarity of the respective signs, despite this not being expressly stated by the evidence;
Arnold LJ agreed with the proposition that innocent adoption of the sign complained of is not, in and of itself, sufficient for a finding of due cause – something more is needed;
it was confirmed that, where objective circumstances give rise to a prima facie case of bad faith, the evidential burden shifts to the applicant to explain its intentions at the time of making the application. This is a legitimate approach regardless of the length of time passed since the application was made; and
the case of Ladbroke v William Hill was held not to be relevant to the question of whether a derivative work is original over an antecedent work.

Lastly, Lewison LJ expressed his view that there cannot be a finding of due cause under s.10(3) where the judge finds that the defendant’s sign took unfair advantage of a registered trade mark. However, the issue thus remains to be clarified by the courts at a later date.

Finally, the Court emphasised the importance of restricting appeals to a review of first instance decisions.

Benet Brandreth KC and Edward Cronan appeared for Lidl, instructed by Bird & Bird. Iain Purvis KC and Hugo Cuddigan KC appeared for Tesco, instructed by Haseltine Lake Kempner LLP.

[2024] EWCA Civ 262

NOCO v Shenzhen Carku [2023] EWCA Civ 1502

NOCO owned GB 2 257 858 (the “Patent”), concerning battery-powered car jump starters. Carku revoked the Patent on grounds of obviousness. Carku also alleged that statements made by NOCO to Amazon were actionable threats...

Tesco v Lidl [2023] EWHC 873 (Ch)

Lidl brought trade mark infringement, passing off and copyright infringement claims against Tesco. The complaint concerned Tesco’s blue and yellow Clubcard Prices symbol, which was said to infringe Lidl’s logo. Tesco cou...

Anan Kasei and Rhodia v Neo [2023] EWCA Civ 11

Neo had infringed the Claimants’ patent by dealing with high surface area (‘HSA’) ceric oxide products in the UK. Those products are used (in combination with a number of other ingredients) in the manufacture of exhaust...

Shenzhen Carku v NOCO [2022] EWHC 2034 (Pat)

NOCO owns GB 2 257 858 (the “Patent”), which concerns battery-powered car jump starters. Carku sought revocation of the Patent on grounds of obviousness over three prior art citations: Richardson, Krieger and a manual fo...

CommScope v SOLiD Technologies [2022] EWHC 769 (Pat)

This was a patent infringement action relating to digital antenna systems (“DAS”). The patent was for a digital DAS, in which the internal handling of the analogue RF signals is digitised. The judge, Mellor J, criticised...

Anan Kasei v Neo [2022] EWHC 708 (Ch)

An inquiry into damages was ordered following the finding of infringement by Neo of Rhodia’s patent for high surface area (“HSA”) cerium oxide, a product used in the manufacture of catalyst systems for vehicle exhausts. ...

Lufthansa Technik AG v Astronics Advanced Electronic Systems & others [2022] EWCA Civ 20

The appeal concerned Lufthansa’s patent for an aircraft passenger in-seat power supply system. The three defendants Astronics, Panasonic and Safran, were responsible for manufacturing such systems, supplying them, and i...

Promptu v Sky [2021] EWHC 2021 (Pat)

In these proceedings the claimant (Promptu) alleged infringement of EP(UK) 1,290,889 (“the Patent”) by the defendants (“Sky”). The Patent is concerned with the voice control of television set-top boxes, and Promptu alleg...

Bentley Motors Limited v (1) Bentley 1962 Limited (2) Brandlogic Limited [2020] EWCA Civ 1726

This was an appeal from the decision of Hacon HHJ in [2019] EWHC 2925 (Ch) where it was held that the well-known luxury car manufacturer Bentley Motors had infringed Bentley Clothing’s trade marks for the word BENTLEY fo...

This was an appeal from the decision of Hacon HHJ in [2019] EWHC 2925 (Ch) where it was held that the well-known luxury car manufacturer Bentley Motors had infringed Bentley Clothing’s trade marks for the word BENTLEY for clothing (the so-called Word Mark and Series Mark) under both ss.10(1) and 10(2) of the Trade Marks Act 1994 (the “Act”). Hacon HHJ had held that Bentley Motors were not entitled to a defence of honest concurrent user and the defence under the transitional provisions of the Act was narrow and limited only to Bentley Motors’ use prior to the coming into force of the Act on 31 October 1994.

Bentley Motors was granted permission to appeal Hacon HHJ’s findings under ss.10(1) and 10(2) and the transitional provisions (which Bentley Motors put on a wider basis on appeal than at trial). Permission to appeal Hacon HHJ’s decision on honest concurrent use was refused.

The appeal was dismissed.

Before the Court of Appeal, Bentley Motors contended on s.10(1) that Hacon HHJ had failed to consider condition (vi) for infringement, being that the trade mark use must affect, or be liable to affect, one of the functions of the trade mark. The Court of Appeal rejected this argument and agreed with Bentley Clothing that the issue of condition (vi) had never been raised by Bentley Motors at trial (other than in the context of honest concurrent use). Given the Hacon HHJ had rejected Bentley Motors’ case on honest concurrent use and permission to appeal had been refused, it was not open to Bentley Motors to contend that condition (vi) was not satisfied for some other reason. Hacon HHJ was correct to find Bentley Motors had infringed the Word Mark and the Series Mark under s.10(1).

It was therefore not necessary for the Court of Appeal to consider s.10(2).

On the transitional provisions, the Court of Appeal held there was no basis to interfere with Hacon HHJ’s formulation of the defence.

Hugo Cuddigan QC and Mitchell Beebe acted for the Claimants, instructed by Fox Williams LLP

[2020] EWCA Civ 1726

Amgen v Sanofi [2020] EWHC 2818 (Pat)

This hearing involved an application by the defendants to lift a stay of proceedings that had been agreed between the parties in what the judge called a “quasi-Tomlin order”. The stay been agreed pending a decision of t...

Freddy SPA v Hugz Clothing and ors [2020] EWHC 3032 (IPEC)

This was the trial of claims for patent infringement, unregistered design right infringement, breach of contract and passing off. The rights in issue related to shapewear jeans. Following earlier allegations of infringem...

Lufthansa Technik AG v Astronics Advanced Electronic Systems & others [2020] EWHC 1968 (Pat)

Lufthansa was the owner of a patent for an aircraft passenger in-seat power supply system. Astronics manufactured such systems, Safran installed them into airline seats, and Panasonic supplied in-flight entertainment sy...

Technetix BV et al v Teleste Limited [2019] EWHC 3106 (Pat)

Technetix alleged infringement of UK Patent No. EP (UK) No. 1 259 074 B8 entitled ‘Communication system comprising means for preventing intermodulation products’ by Teleste’s supply of telecommunications products to Virg...

Bentley 1962 Ltd & Anor v Bentley Motors Ltd [2019] EWHC 2925 (Ch)

This was a claim of trade mark infringement under ss.10(1) and 10(2) of the Trade Marks Act 1994 against the well-known luxury car manufacturer Bentley Motors Limited. The Claimants, Bentley 1962 Limited and Brandlogic L...

This was a claim of trade mark infringement under ss.10(1) and 10(2) of the Trade Marks Act 1994 against the well-known luxury car manufacturer Bentley Motors Limited. The Claimants, Bentley 1962 Limited and Brandlogic Limited (together, “Bentley Clothing”), were respectively, a family firm who sold clothing under the brand ‘Bentley’ and the owner of three registered UK Trade Marks containing the word BENTLEY. Bentley Motors had used the word BENTLEY on clothing both alone and in combination with the ‘B in Wings’ device (referred to as the “Combination Sign”).

Bentley Clothing succeeded under both ss.10(1) and 10(2).

In relation to s.10(1), Bentley Clothing’s case was that use of the Combination Sign was use of two separate marks – the word BENTLEY and the ‘B in Wings’. This was put on two grounds. First, Bentley Motors was estopped from saying the Combination Sign was one mark given a prior decision involving the parties in the UKIPO, and second, the average consumer would treat it as two marks. While there was no estoppel, Hacon HHJ held that the Combination Sign was two marks and its use in relation to clothing was infringement of Bentley Clothing’s word marks for BENTLEY. Had there been no infringement under s.10(1), it was held that there would have been infringement under s.10(2).

Hacon HHJ then considered Bentley Motors’ defences. The first concerned the transitional provisions under the Trade Marks Act 1994. Due to some clothing sales prior to 1994, Bentley Motors was permitted to use the word BENTLEY to a limited extent on advertising literature for the sale of jackets, silk ties, caps and scarves but not on the goods themselves or on tags or other materials attached to the goods. The second defence was honest concurrent use. Since 1998, Bentley Motors had been on notice as to Bentley Clothing’s business and trade marks. It had adopted a policy of ‘grandmother’s footsteps’, involving a conscious decision to adopt use of the word BENTLEY in incremental stages to avoid triggering a response from Bentley Clothing. This conduct did not constitute honest concurrent use. This defence was rejected.

Hugo Cuddigan QC and Mitchell Beebe acted for the Claimants, instructed by Fox Williams LLP

[2019] EWHC 2925 (Ch)

Hugo Cuddigan KC

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