Gnat and Company Limited & anr v West Lake East Limited & anr [2022] EWHC 319 (IPEC)
This was a dispute between two restaurant businesses. The Claimants’ group has operated the “China Tang” Cantonese restaurant at the Dorchester Hotel in London since 2005. The Defendants had operated a Chinese takeaway in Barrow-in-Furness, also under the name “China Tang”, since 2009. The Claimants asserted infringement of a registered trade mark (comprising the words CHINA TANG with figurative elements) contrary to sections 10(2) and (3) of the Trade Marks Act 1994 (“the Act”), and passing off. The Defendants counterclaimed for partial revocation of the Claimants’ trade mark on grounds of non-use, and asserted a defence of honest concurrent use on the basis that the name “China Tang” had been selected without knowledge of the Claimants’ business and had been used by them for several years.
The Court found that the Claimants’ trade mark had been infringed contrary to section 10(2) of the Act, but dismissed the claims for infringement contrary to section 10(3) of the Act and passing off. The Defendants’ counterclaim was dismissed save in respect of one sub-category of services. Finding that the Defendants were not entitled to a defence of honest concurrent use, the Court focussed on the fact that when Defendants started to use the name “China Tang”, they had not carried out any trade mark or internet searches which would have revealed the existence of the Claimants’ trade mark and restaurant.
David Ivison appeared for the Claimants.