Background
The claimant companies, members of the Entain betting and gaming group, alleged that the defendants used Entain brands—including Ladbrokes, Coral, bwin, Sportingbet, Gala and Foxy—on websites offering matched-betting and casino-offer services. The claimants brought trade mark infringement claims concerning 18 registered marks and copyright infringement claims concerning brand logos and extracts from betting and gaming websites.
The defendants denied trade mark infringement, relying principally on the statutory defence for referential use, and counterclaimed for invalidity or revocation of certain marks. Before case-management directions were given, each side sought partial strike-out relief. The defendants argued that the copyright allegations failed to identify the protected works, originality, authorship, qualification for UK protection and the claimants’ chain of title with sufficient factual detail. The claimants separately challenged portions of the defence and counterclaim as irrelevant, inadequately pleaded or premature.
The Court’s Holding
Mr Justice Cawson held that the copyright claim, even as presented in draft amended particulars, did not plead sufficient material facts to establish a complete cause of action or enable the defendants to understand the case they had to answer. General assertions and inferences drawn from ownership of trade marks, corporate acquisitions and longstanding use did not adequately identify the copyright works, their original features, their authors, their qualification for UK protection, or the claimants’ ownership or exclusive licences. The court therefore acceded to the defendants’ application, but indicated that strike-out should take effect only if the claimants failed promptly to serve corrective and compliant amended particulars within a prescribed period.
The court largely refused the claimants’ application against the defence and counterclaim. It permitted the defendants’ introductory trade mark narrative and their references to confusion because confusion could be relevant to the marks’ origin function, referential use, honest practices and the link required for reputation-based infringement, even though the claimants had not pleaded a distinct confusion claim. The defendants agreed, however, that the mistaken reference to section 10(2) of the Trade Marks Act 1994 in paragraph 65 should be deleted. The court also declined to strike out conditional allegations concerning two newer marks whose five-year non-use periods would expire in 2027, while holding that the defendants would need permission to amend their requested relief before seeking revocation of those marks.
Key Takeaways
- A copyright claimant must plead material facts identifying the protected works, their originality, authorship, qualification for protection and the claimant’s title; formulaic legal conclusions and unsupported ownership inferences are insufficient.
- Ownership of registered trade marks, corporate acquisition of brands and longstanding use of logos do not by themselves establish ownership of, or an exclusive licence to, copyright in those works.
- A defence may address confusion even when no section 10(2) claim is pleaded if confusion remains relevant to other trade mark issues, including origin function, referential use, honest practices or reputation-based infringement.
Why It Matters
The decision underscores the demanding factual particularity required when businesses assert copyright in long-evolving logos and websites, especially where outside agencies, predecessor companies or unidentified designers may have created the relevant material. Brand control and trade mark registration cannot substitute for pleading the creation and chain of title of each copyright work. The ruling also illustrates the High Court’s willingness to allow a short opportunity to cure defective pleadings rather than make strike-out immediately effective, while preserving properly arguable trade mark defences for trial.