References: [2006] RPC 25
Coram: Professor Annand
Ratio: Professor Annand set out the combined test of bad faith in a trade mark application: ‘Bad faith is to be judged according to the combined test of dishonesty for accessory liability to breach of trust set out by the majority of the House of Lords in Twinsectra Ltd v Yardley, with Gromax Plasticulture Ltd v Don & Low Nonwovens Ltd providing the appropriate standard, namely acceptable commercial behaviour observed by reasonable and experienced persons in the particular commercial area being examined.
the upshot of the Privy Council decision in Barlow Clowes is: (a) to confirm the House of Lords’ test for dishonesty applied in Twinsectra, i.e. the combined test; and (b) to resolve any ambiguity in the majority of their Lordships’ statement of that test by making it clear that an enquiry into a defendant’s views as regards normal standard of honesty is not part of the test. The subjective element of the test means that the tribunal must ascertain what the defendant knew about the transaction or other matters in question. It must then be decided whether in the light of that knowledge, the defendant’s conduct is dishonest judged by ordinary standard of honest people, the defendant’s own standards of honesty being irrelevant to the objective element.’
Last Update: 10-Aug-16
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