IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

INTELLECTUAL PROPERTY LIST (ChD)
INTELLECTUAL PROPERTY ENTERPRISE COURT

Before HHJ Melissa Clarke

On the 27th of June 2019

BETWEEN:

ATB SALES LIMITED

Claimant
- and -

(1) RICH ENERGY LIMITED

(2) WILLIAM JOHN STOREY
(3) STAXOWEB LIMITED
Defendants

ORDER

IMPORTANT:

NOTICE TO THE DEFENDANTS

1) This Order prohibits you from doing the acts set out in
this Order. You should read it all carefully. You are
advised to consult a Solicitor as soon as possible.
2) If you disobey this Order you may be found guilty of
contempt of Court and may be sent to prison or fined or
your assets may be seized.

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UPON liability having been determined at trial before Her Honour
Judge Melissa Clarke on 12th and 13th March 2019

AND UPON hearing Roger Wyand QC and Ben Longstaff, Counsel

for the Claimant, and Thomas St Quintin, Counsel for the
Defendants, at that trial

AND UPON the Court handing down its written judgment (“the
Judgment”) on 14th May 2019

AND UPON hearing Ben Longstaff, counsel for the Claimant, and
Thomas St Quintin, counsel for the Defendants, in respect of the
form of this order

AND UPON the Defendants applying to the judge for permission to

appeal

IT IS ORDERED THAT:

1. The Defendants’ application for permission to appeal the

Judgment is refused. Pursuant to r.40.2(4) an appeal from this
order lies to the Court of Appeal, to which an application for
permission to appeal may be renewed.

2. For the purposes of this order the “Effective Date” is 18th July
2019. The Defendants’ application for a stay of paragraphs 5, 7
and 8 of this order beyond the Effective Date is refused, but
may be renewed to the Court of Appeal together with any
further application for permission to appeal.

3. The time for the Defendants to apply to the Court of Appeal for
permission to appeal shall expire at 4pm on the Effective Date.

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IT IS DECLARED THAT

4. The Defendants have infringed the Claimant’s copyright in C’s

Device by their use of D1’s Device. C’s Device and D1’s Device
are set out in Schedule A hereto.

5. UK trade mark number 3126288 is invalid pursuant to

s.47(2)(b) of the Trade Marks Act 1994, save that this
paragraph shall not take effect until the day after the Effective
Date.

6. The Claimant is entitled, at its election, to an inquiry as to

damages or an account of the profits accruing to the
Defendants as a result of their infringement of the Claimant’s
copyright in C’s Device.

AND IT IS FURTHER ORDERED THAT

7. From 4pm on the Effective Date (or the date of service of this
order whichever is later) the Defendants or any of them must
not, whether acting by themselves, their officers, employees,
servants or agents or howsoever otherwise carry out, or cause
or authorise any others to do, the following acts or any of them
in the UK without the licence of the Claimant:

a. Reproduce C’s Device or any substantial part thereof

within the meaning of s.17 of the Copyright, Designs and
Patents Act 1988 (“CDPA 1988”);
b. Issue to the public infringing copies of C’s Device or any
substantial part thereof (“Infringing Copies”) within the
meaning of s.18 CDPA 1988;

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 c. Sell, offer or expose for sale or exhibit in public or
distribute copies of C’s Device;
d. Communicate Infringing Copies to the public within the
meaning of s.20 CDPA 1988;
e. Import into the United Kingdom any Infringing Copies;
f. Possess or deal with any Infringing Copies within the
meaning of s.23 CDPA 1988;
g. Transmit Infringing Copies by means of any
telecommunications system, knowing or having reason to
believe that infringing copies of C’s Device will be made
by means of the reception of such transmission in the
United Kingdom or elsewhere;
h. Otherwise infringe the Claimant’s copyright in C’s Device.

8. Each of the Defendants shall:

a. by 4pm on 1st August 2019: (i) deliver up or cause to be
delivered up to the Claimant’s premises at Whitworth
Road, Hastings, Saint Leonards-on-sea, TN37 7PZ; or (ii)
destroy or cause to be destroyed; or (iii) alter so as no
longer to be infringing or cause such alteration; all
Infringing Copies, and any articles specifically designed
or adapted for making Infringing Copies, in their
possession or control in the UK. All such Infringing Copies
and articles delivered up as aforesaid shall be forfeited to
the Claimant;
b. within 7 days thereafter furnish the Claimant with a
witness statement verified by a statement of truth
(signed, as the case may be, by the Second Defendant
for himself and on behalf of the First Defendant and by a
suitably authorised officer of the Third Defendant)
attesting to that Defendant’s compliance with
subparagraph (a) above, and in the case of destruction or

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 alteration so as no longer to be infringing, explaining and
evidencing the mode of compliance therewith.

Disclosure and election

9. The Defendants shall by 4pm on 1st August 2019 provide to the

Claimant’s solicitors a witness statement by the Second
Defendant (on his own behalf and on behalf of the First
Defendant) verified by a statement of truth, setting out the
following information:

a. The First and Second Defendant’s total UK and global

sales to date of cans of “Rich Energy” drink bearing D1’s
Device, and the total sums received from such sales;
b. The First Defendant’s total UK and global sales to date of
any other products bearing D1’s Device, and the total
sums received from such sales;
c. An estimate of the costs incurred in making such sales,
and an explanation of how that estimate was reached;
d. Figures showing:
i. Any sums of money invested in or made available
to the First Defendant, including for the avoidance
of doubt sums invested in or made available to the
First Defendant in connection with its sponsorship
of the Haas F1 Team;
ii. Any sums of money invested by third parties in any
other company or entity controlled by the Second
Defendant in connection with and/or pursuant to
the First Defendant’s sponsorship of the Haas F1
Team;
iii. Full details of any sums of money paid or payable
to the Haas F1 Team pursuant to the First
Defendant’s sponsorship of the Haas F1 Team,
indicating in each case whether such sums were

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 paid or payable by the First Defendant or by any
other entity;
e. An estimate of the proportion of the £50,000 paid to the
Third Defendant to produce, inter alia, a logo for the First
Defendant which is attributable to the work of designing
of a logo as part of that commission, and an explanation
of how that estimate was reached.

10. The Claimant shall, within 21 days of service upon it of the

disclosure pursuant to paragraph 9 above, give notice to the
Defendants’ solicitors of its election between an account of
profits or and inquiry as to damages, unless the Claimant before
that time applies to the Court for a declaration that the
aforesaid disclosure was inadequate for the purposes of making
a properly informed election.

11. The inquiry as to damages or account of profits, as the case

may be, shall be reserved to the trial judge.

Costs

12. The Defendants are jointly and severally liable to pay the
Claimant’s costs of this action as assessed and ordered below.

13. The Claimant’s costs are hereby summarily assessed in the sum
of £35,416.

14. The Defendants shall pay to the Claimant the sum of £35,416
within 14 days of the date of this order.

Service of this order

15. This order shall be served by the Claimant on the other parties.

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The Court has provided a sealed copy of this order to the
representatives of the serving party:

Hall Ellis Solicitors

89 Fleet Street
London EC4Y 1DH
Solicitors for the Claimant

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 SCHEDULE A

C’s Device D1’s Device