Can you resell another’s branded goods without permission?Wilko v Buyology

This case between the two budget retailers, involves the use of the trade marks “Wilko” which is the general name for Wilko Retail Limited. Buyology a rival retailer for end-of-line products is in court for the unlawful use of three trade marks for the forms of the word “Wilko”.

Buyology does not deny that they have sold goods bearing the name WILKO without the consent of the retailer, although their suppliers assured them that they were entitled to sell the products.

The first letter of complaint was served on 30 October 2012, requiring that Buyology remove all WILKO branded items from sale, various correspondences was sent back and forth between the parties until on the 5 August 2013 the claim form was issued, closely followed by the particulars of claim on the 17 August.

On the 31 October the defendant submitted a defence stating that they admit to the infringement and undertake not to sell any of the claimants branded goods. Despite this assertion by the defendants’ sales of the branded goods continued. Buyology stated that such sales were incidental and in a very small number.

In the letter dated 6 November 2013 to Buyology from Wilko’s solicitors, it stated that sales of the branded goods still continued in several of their stores, as well as offering a proposal to agree a form of order involving an injunction and an account of profits.

On the 20 November, a letter was sent to Wilko from Buyology’s solicitors stating that they will agree to an order which allows for Wilko to remove all of their branded stock from the stores, and to further check that there are no more sales of their goods. Interestingly the solicitor state that since the first letter they have enquired among a number of sources where wilko goods have been sold and in each there are no requirements to remove branding.

The case went to court to decide whether there was a binding agreement.

Ms Chantrielle, appearing for Buyology submitted to the court that the letters sent between the parties constituted a binding agreement to settle the dispute. Ms Pickard appearing for the claimant, asserted that the letters were in fact an offer and the reply sent by the defendant was actually a counter offer, which was never accepted. She went on to discuss that the contents of the letter from the defendant was no more than a suggestion on how to best implement a solution and not terms of a contract.

The court deemed that Ms Pickard’s view was not correct; reading the letters supported the view that there was a binding contract that will be performed when the parties appeared in court.

Does this agreement preclude Wilko from seeking a Norwich Pharmacal Disclosure?

Wilko wanted a disclosure of Buyology’s supplier of their goods, but does this decision preclude them from seeking this order.

Ms Pickard submitted that this decision does not affect her clients right to seek this form of order. On the other hand Ms Chantrielle submitted to the court that it was her understanding that when the order was dealt with it mean finality to all proceedings and the fact the claimants are seeking extra relief is abuse of process.

She went on to further state that to start new proceedings for a Norwich Pharmacal disclosure would be contrary to the rule in Henderson v Henderson requiring finality in litigation.

The Judge concluded that it depends on the irrevocable harm suffered by Wilko, if sufficient then it is vital to expose the supplier to stop more harm from being suffered but on the balance including the possible harm it will do to Buyology the judge decided not to order disclosure.

Written by Thomas Mould whilst on work experience at Lawdit

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