Each party had, to the knowledge of the other, been infringing the other’s trademarks over a considerable period. There had been discussions over the years between the parties and the effect of a letter written on behalf of the plaintiff was that anyone ‘might reasonably think that the Defendants were being told inferentially that no complaint was being made of the Defendants’ then present user of their trademark (device and words) on shirts, nor was any complaint made for twenty-nine years thereafter’.
Held: Upjohn J said: ‘Nevertheless, while falling short of estoppel, in my judgment the behaviour of the Plaintiffs, coupled with the very long delay, really amounted to an acknowledgement by them of the Defendants’ right to continue the use of their (the Defendants’) marks, and to a waiver of the Plaintiff’s right to sue for infringement by such continued user. I accept the Defendants’ submission that really the course of conduct between the parties showed a mutual policy of restraint to one another, or, putting it more colloquially, a mutual agreement to live and let live.’
Judges:
Upjohn J
Citations:
[1958] RPC 355
Cited by:
Cited – Brooker and Another v Fisher CA 4-Apr-2008
The claimant had asserted a joint authorship of the song ‘A Whiter Shade of Pale’ written in the sixties. The defendant appealed saying that the claim had been brought too late, and that the finding ignored practice in the music industry. The . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 15 May 2022; Ref: scu.266479
