Force India: breach of confidence, but no more damages

Force India Formula One Team Ltd v Aerolab Srl & Anor [2013] EWCA Civ 780 (03 July 2013)  is perhaps the judicial equivalent of being relegated to the back of the grid after being found to be 1.5 kg overweight. Certainly it's a second, arguably self-inflicted, misfortune in only a few days to be visited on Force India, who nevertheless are knocking ever harder on the door that leads to the front end of grand prix motor racing.*

The appeal was from a judgment of Arnold J, ([2012] EWHC 616 (Ch) (21 March 2012)) who had awarded Force India damages which failed to meet the team's claim, falling short by three orders of  magnitude. The Court of Appeal dismissed the appeal: the award was proportionate and dissuasive (amounting to the profit made by the defendants). Interestingly Lewison LJ said he was "sceptical" about whether the enforcement directive applied to breach of confidence actions, though even if it did he did not think the award breached the directive.

The dispute dates back to August 2009, when the defendants started to work for Team Lotus, which began campaigning in the 2010 season (though under the name Lotus Racing at first), before being obliged to change its name to Caterham for the 2012 season after the Chapman family changed sides. The use of the Lotus name also gave rise to litigation - and to Peter Smith J's expression of regret that the parties were not fighting things out on the racetrack but in the courtroom. Unfortunately for Team Lotus/Caterham, on the track they never come within striking distance of their opponents in the court (except when Paul Di Resta is obliged to start from the back of the grid and has to pass what are still often called the "new teams").

In the present case, of course, Caterham were not a party. Nevertheless, they were the indirect beneficiary of the breach of confidence, and therefore an indirect target of the litigation - which perhaps shows how times change in grand prix motor racing: Force India have not been consistently near the front but they have had their moments over the years, while Caterham's best years are, I hope, ahead of them - they are a couple of years behind Force India, which started racing in 2008, although it can trace its history back to the launch of the Jordan team in 1991. Even in 2010 Force India were miles ahead of the new teams. From Force India's point of view, was the backmarker worth (as litigators say) powder and shot?

* I use the expression deliberately, in protest against the appropriation as a trade mark of the title of the applicable set of rules and its use as the name of the series of races.

Interflora gets general EU-wide injunction

Interflora Inc & Anor v Marks and Spencer Plc & Anor [2013] EWHC 1484 (Ch) (12 June 2013)  is the latest in a saga with many chapters. Last month Arnold J held that Marks & Spencer had infringed Interflora's trade marks, through keyword advertising: this month he  has granted a general injunction - as opposed to one that deals only with specific infringing acts - across the whole EU.

Such a general injunction might be thought to be disproportionate, and therefore contrary to the enforcement directive. It could have a chilling effect (something that in the depths of an English summer might almost go unnoticed) because the threat of content proceedings would be hanging over the party injuncted: but (on the basis of Hotel Cipriani Srl v Fred 250 Ltd [2013] EWHC 70 (Ch), [2013] EMTR 18 the fact that declaratory relief is available mitigates this undesirable possibility. In other words, you don't need to worry so much about going to gaol for contempt if all it takes is an application to the court to be guided on what you can and can't do. Then all you have to worry about is your lawyers' bills, although they will be smaller than they would be if a fresh application were needed or if you were hauled up for contempt.

The defendant had not managed to convince the court that the its infringement would not or was not liable to affect the functions of Interflora's CTM in other Member States, so the court applied the general rule that an injunction in a CTM case should apply throughout the Union (applying Case C-235/09, DHL v Chronopost [2011] ECR I-2801).