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Bucks Fizz - High Court makes its mind up on trade mark injunction application

On Friday afternoon (27 July) Mr Justice Jacob refused to grant an injunction to prevent David Van Day's present pop group from using the name Bucks Fizz.

David Van Day shot to fame in the 1980s with his pop duo Dollar, however for the last five years he has been performing under the name Bucks Fizz initially with Bobby G in one version of the Bucks Fizz band and subsequently in another version of Bucks Fizz with Mike Nolan. Both Bobby G and Mike Nolan were founder members of the group. Their favorite party piece being "Making Your Mind Up" which was a song made famous by the original line up of the group when they won the Eurovision song contest in 1981. David Van Day was not in the Eurovision song contest line up, but is now associated by the fans with the Bucks Fizz name due to heavy gigging, television and radio appearances and 8 albums and 2 singles released by him under the name Bucks Fizz.

Mike Nolan has now left David Van Day's group, resulting in an injunction application brought by the other Bucks Fizz band featuring Bobby G (real name Robert Gubby) who founded his action on the basis of a trade mark which has been recently registered. However, as David Van Day had been trading as Bucks Fizz for five years before Bobby G's band brought the proceedings the Judge declined to grant an injunction which would have resulted in cancellation of David Van Day's present tour which has over ten dates still to go until Christmas.

Mr Justice Jacob found that in 1997 when David Van Day left Bobby G's version of Bucks Fizz, Bobby G and his group made a conscious decision not to attempt to sue in passing off, but to apply for a registered trade mark and wait for the application to mature before taking any action. Mr Justice Jacob was of the opinion that given the history of this matter the validity of the registered trade mark and who was entitled to use the Bucks Fizz name was likely to be governed by passing off principles. He was clearly of the view that if Bobby G's band was going to sue it should have done so when the dispute first arose in 1997 commenting "I have never seen a trade mark case get better by leaving it for four years" .

The Judge found that there was a serious issue to be tried, but the harm to David Van Day if an injunction were granted (which would include, loss of reputation, cancelled tour dates, ticket returns and disruption likely to lead to a permanent change of name of his band) far outweighed the harm to Bobby G's band if an injunction were not granted as the latter had been living with the situation of two rival Bucks Fizz bands for approximately 5 years. The granting of the registered trade mark was not a sufficient event to make the case one appropriate for emergency relief. Accordingly, Bobby G's application for an immediate ban on use of the name by David Van Day was denied by the Court.

Bobby G's band also submitted that the Judge should make an Order that the matter be heard as a speedy trial. However, Mr Justice Jacob commented that he was not impressed by this submission and even if both parties had requested such an Order he failed to see why this case should jump the usual timetabling queue. It will take about 2 years for the full hearing of the issues to come to trial, during which time David Van Day is free to continue using the Bucks Fizz name.

Bobby G was represented by Tom Mitcheson of 3 New Square and Phillip Thompson (Partner) of Ramsbottom & Co Solicitors.

Representing David Van Day was Phil Roberts of 1 Essex Court and Dawn Osborne (Partner) and Steve Palmer (assistant solicitor) of Willoughby & Partners

 

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