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ACID (Anti Copying in Design) members Firecraft, who specialise in the manufacture and sale of beautiful hand carved stone fireplaces and accessories, are celebrating after a landmark High Court ruling involving a competitor, Focal Point Fires Plc. Having previously been successful in invalidating Focal Point’s trade mark “Firecraft” and subsequently issuing High Court proceedings to Focal Point for “passing off”, Judge Peter Smith declared that there was no reasonable prospect of Focal Point Fire being successful in defending the Action because the Registry had already found that “passing off” had occurred. The Court will issue a declaration that Focal Point passed themselves off as Firecraft in due course.

ACID CEO Dids Macdonald said, “Pursuing a ‘passing off’ action is not for the faint hearted and involves considerable time, evidence and, therefore, cost. Often the outcome is far from certain. In clarifying this aspect of trade mark law, Judge Peter Smith has reinforced the importance of giving full attention to a system whereby trade mark registrations can be invalidated in the trade marks registry on the basis of prior rights and the potential consequences in subsequent high court proceedings. However, one benefit of this decision has been the substantial cost savings and use of court resources” 

In 2008 Firecraft were successful in their application to the UK Intellectual Property Trade Marks Registry to invalidate Focal Point Fires PLC’s trade mark for the word FIRECRAFT. Firecraft had based their application on the fact that they had created substantial goodwill in the name Firecraft over many years and that Focal Point’s use would be likely to damage this goodwill. Focal Point did not appeal the registry decision. In March 2009 Firecraft issued High Court proceedings to Focal Point, suing them for passing off. The strength in Firecraft’s case was that Focal Point could not defend the action for “passing off” as the Registry had already found that passing off had occurred.

Firecraft then applied for a summary judgment on the basis that Focal Point had no reasonable prospect of success in defending the Action. A hearing took place before the High Court and on 10 November 2009, Judge Peter Smith handed down Judgment in Firecraft’s favour. The Court will, in due course, issue a declaration that Focal Point passed themselves off as Firecraft. The question of costs and damages will be dealt with at a further hearing.

Niall Head-Rapson, of ACID accredited law firm McDaniel & Co. who acted for Firecraft commented, “This is a significant result for Firecraft. They have been inundated with enquiries relating to the fires of Focal Point, which they do not supply. It has interfered with, and had a detrimental effect, on their day to day business. Taking action has indicated their tenacity in protecting the credentials of the Firecraft brand, under which they have gained a significant reputation.”

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