Aviator LLC & others v Spribe Oü [2026] EWHC 2840 (BP)
This groundbreaking decision concerns applications for permission to amend to introduce foreign law claims for passing off/unfair competition and an interim injunction to restrain commercial activities in several overseas territories pending trial. The judgment traverses novel areas of jurisdiction and the applicability of foreign law in the English Courts.
The case concerns rival claims to the brand ‘AVIATOR’ for online gambling games marketed around the world. The Claimants contend that the branding of the Defendant’s game infringes the Claimants’ international copyrights, and seek a perpetual global injunction restraining the supply of that game. The Defendant contends that the branding of the Claimants’ game infringes the Defendant’s international copyrights and constitutes passing off / unfair competition, and seek a perpetual injunction restraining the supply of that game in the UK and in certain overseas territories.
Tappin J held (applying Glencore International v Exter Shipping [2002] EWCA Civ 528) that the court had jurisdiction to hear the Defendant’s proposed foreign law claims, and elected to exercise that jurisdiction on the grounds that England was the appropriate forum for the wider international dispute (see [11]-[13] and [56]-[68]). As to the relevant foreign laws of passing off and unfair competition, Tappin J held (applying Brownlie v FS Cairo [2021] UKSC 45) that it was sufficient to pass the merits test on amendment for the Defendant to rely on the presumption that foreign law is the same as that of England (see [27]-[40]).
Turning to the interim injunction, the judge held that under Rome II, foreign law applies to the question of whether the remedy of an interim injunction is available, and English law applies to the procedure by which such a remedy is granted ([109]-[123]). Finding that interim relief was available under the law of each of the relevant overseas territories, the judge applied the American Cyanamid test and granted an interim injunction limiting the availability of the Claimants’ game in those territories pending trial.
The judge granted the Claimants permission to appeal both aspects of the decision.
Tom Alkin acted for the Claimants. Hugo Cuddigan KC and Christopher Hall acted for the Defendant