Back in 2001 it was the court’s task to decide whether it was unauthorised use of a trade mark or whether the use of a badge of loyalty precluded the ‘in the course of business’ requirement. Eventually after numerous hearigns/appeals in 2003, Arsenal were declared the winner.
Arsenal entered into a consent order in 2003, which required Reed to stop infringing but imposed a duty on Arsenal to use its reasonable endeavours to supple Reed with legitimate goods with prices comparable to the lowest prices offered to the other market traders.
Reed happily purchased licensed goods up until 2011 when Arsenal decided to revise its business model. In 2012 it withdrew itself from the wholesale market and no longer sold to market traders. Reed therefore claimed there was a breach of clause 7 and went to court to seek a declaration to that effect.
Judge Pelling QC dismissed Reed’s Application stating that the consent order was not to make Arsenal supply Reed with goods but simply to protect Reed from being discriminated against in comparison with other traders.
This clause was not a definitive right for Arsenal to provide Reed with merchandise. The fact that Arsenal has simply stopped wholesaling all merchandise to all traders would mean that there is no discrimination against Reed himself.
Unfortunately this is yet another loss for Mr Reed and a victory for the big boys.