IP World Twevent - News just in on Westwood v Knight!
Apr 26, 2012
Since our last blog on Monday ( https://www.waterfront.law/blog/ip-day-twevent-dame-vivienne-westwood-visionary-innovator ) there have been some interesting developments reported in this case. On Tuesday, Judge Birss QC handed down his judgment in relation to his decision on the contempt of court application made by Dame Vivienne (Westwood v Knight  EWPCC 14 (24 April 2012) and it makes for some interesting reading! Background As mentioned in our post of Monday, Mr Knight's was recently warned by Judge Birss QC that he could face jail after hearing that Mr Knight had continued to sell the goods online – meaning he was in contempt of court. At a hearing in February 2012, Judge Birss QC said it was plain Mr Knight was in contempt but Dame Vivienne would need to identify which of her trademarks he had continued to infringe before passing sentence, and Dame Vivienne did that in a hearing on 23 March 2012. Mr Knight had unsuccessfully attempted to adjourn the hearing before Judge Birss QC by producing (by email) to the court a sick note from his GP. This was disregarded by Judge Birss QC. Contempt of Court Judge Birss QC set out at the outset that the burden was on Dame Vivienne to satisfy him that Mr Knight was guilty of the alleged contempt. Contempt carries a criminal standard of proof and therefore Dame Vivienne had to show that Mr Knight was beyond reasonable doubt guilty of the alleged contempt. It seems Mr Knight’s had thought that an order which was the subject of an appeal need not to be complied with. Judge Birss QC explained in his judgment that this is simply wrong. Judge Birss QC said that he must decide whether any additional acts, which were different from the acts ruled on at trial, were infringements or not. Decision Judge Birss QC found Mr Knight to be in contempt for a long list of acts: 1) Failure to deliver up infringing items to the Dame Vivienne’s solicitors, 2) Failure to serve a affidavit relating to delivery up of infringing items on the Dame Vivienne’s solicitors, 3) Failure to transfer the domain name www.2fasttolive.co.uk to Dame Vivienne, 4) Failure to cease infringement of registered Community trademark TOO FAST TO LIVE TOO YOUNG TO DIE and passing off by use in trade, including on his website, 5) Failure to cease infringement of registered Community and UK trademarks for the Vivienne Westwood Orb mark and passing off by use in trade including on his website, 6) Failure to cease infringement of the copyright in the Claimant's VIVIENNE WESTWOOD and Orb device, 7) Failure to cease Passing off by use of WESTWOOD on his website, “New Acts” which were not part of the original Order: 8) Trading activity by Mr Knight on the internet through a site called eBid related to use of "red planet westwood", 9) Passing off by use of the WORLD'S END, LET IT ROCK, ARM & CUTLASS, I ♥ CRAP marks in trade by offering for sale on his website. In summary, there wasn’t much of the Order of which he had complied with! Punishment Judge Birss QC considered the position to be that he had a Defendant who had acted in clear, flagrant contempt of court. Mr Knight’s contempts were numerous, substantial and continued for a very long period of time. Judge Birss QC further commented that although Mr Knight had adjusted his behaviour, he “tries at every turn to get away with as much as he can”. Judge Birss QC found that Mr Knight should be before the court when he decides how to punish him for the contempts of court he has committed so that he had the opportunity to hear any mitigation which may be put forward by Mr Knight. Judge Birss QC said that Mr Knight should attend the handing down of his judgment on 24th April 2012 in order to present his mitigation. Judge Birss QC made it clear that if Mr Knight attended then there would be no need to issue a bench warrant, however, if he did not attend Judge Birss QC would issue a bench warrant to bring Mr Knight before the court to decide on the proper punishment for his contempts of court. The published judgment does not record whether Mr Knight attended Tuesday’s court date. As soon as we know if he did we will of course keep you informed!