Bad faith grounded in a lack of intention to use a trade mark (With Wise Ltd v Wise Payments Ltd)
IP analysis: This case represents the first time since the Supreme Court’s judgment in SkyKick v Sky (SkyKick) that a trial court has considered lack of intention to use a trade mark as a ground of invalidity falling within section 3(6) of the Trade Marks Act 1994 (TMA 1994). The court considered the principles set out in SkyKick, with a key focus being the evidential burdens of the parties in such a case. The court held that the defendants had not rebutted the presumption of good faith in one respect but had in another. The claimant had not filed evidence to justify its position on the point where the presumption had been rebutted. The bad faith issue was one of many in the case. The others (summarised at para [22]) were issues of trade mark infringement and passing off. Those issues involved the routine application of well settled principles to the facts as found. This Case Analysis does not deal with those points. Written by Michael Smith, barrister at Three Stone Chambers.