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Supreme Court rejects Starbucks HK appeal in NOW TV in passing off claim

Subject: Intellectual property/Passing off

Source: Source: British and Irish Legal Information Institute (BAILII)

Starbucks (HK) Limited and another (Appellants) v British Sky Broadcasting Group PLC and others (Respondents) [2015] UKSC 31

Judgment given on 13 May 2015

The Supreme Court has dismissed the appeal from the Court of Appeal brought by Starbucks (HK) Limited and another against British Sky Broadcasting Group PLC and others.

This case started in the UK High Court in 2012 and arose because Starbucks HK and PCCW Media Ltd were part of a group (PCCM) which since 2003 has provided a closed circuit IPTV service in Hong Kong, launched under the name ‘NOW BROADBAND TV’ but in March 2006 the name was changed to’ NOW TV’. There was evidence that some UK Chinese-speakers were aware of the PCCM service but there were no UK customers.

On 21 March 2012, the three respondent defendants, British Sky Broadcasting Group PLC, British Sky Broadcasting Ltd and Sky IP International (Sky) announced that they intended to launch a new broadband TV service under the name NOW TV, which subsequently was launched in beta form in mid-July 2012.

PCCM made a claim in the UK High Court against Sky for passing off in relation to the ‘NOW TV’ name. However, the judge dismissed the claim. The Court of Appeal dismissed PCCM’s appeal and now the UK Supreme Court has also rejected the further appeal of PCCM.

The Supreme Court noted that PCCM's business was based in Hong Kong, and it had no customers, and therefore no goodwill in the UK. There was a significant number of people who were, temporarily or in the longer term, members of the Chinese community in the UK, with whom the mark NOW TV was associated with PCCM's IPTV service. However, in so far as they were customers of PCCM, they were customers in Hong Kong, and not in the UK. PCCM therefore had no goodwill in the UK on which they could found a passing off claim.

[Original text of the case report supplied by BAILII gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]


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