(1) Fayus Inc. (2) Fatai Adelaja Yusufu v Flying Trade Group Plc

[2012] EWPCC 43

Claimants (‘Cs’), issued a claim against the Defendant (‘FTG’) based on passing off and seeking a declaration of invalidity. Cs sold certain African foods under and by reference to OLA-OLA in the UK since 2004.

In 2011 FTG sold food products under the same name. Both marks are figurative and were similar. In 2010 FTG secured a registered trade mark for OLA-OLA.

Cs case was that (1) the trade mark was invalid (relying on passing off) and (2) FTG’s use of OLA-OLA constituted passing off.

All parties consented to the Judge making a preliminary, non binding opinion on the merits of Cs’ case.

The Judge’s preliminary view was:

(1) The passing off case was strong. (2) it followed also that there would be a strong case that invalidity proceedings against FTG’s mark was strong also.

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