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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bayrische Motoren Werke Aktiengesellschaft & Anor v Young & Ors [2003] EWCA Civ 857 (10 June 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/857.html Cite as: [2003] EWCA Civ 857

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL,
AN EXTENSION OF TIME AND A STAY OF EXECUTION
(MR JUSTICE FERRIS)

		Royal Courts of Justice Strand London, WC2
		10 June 2003

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Graham Young in person. He wishes to appeal an order made by Mr Justice Ferris. By that order dated 8 November 2002 Mr Justice Ferris refused an application by Mr Graham Young to set aside a default judgment, which had been entered against him in proceedings brought by Bayrische Motoren Werke and BMW (GB) Ltd for passing off and infringement of trade mark.
2. The proceedings were begun on 17 June 2002. There was no acknowledgement of service, and no defence. Accordingly an application was made for judgment in default. A default judgment was granted by Mr Justice Park on 30 July 2002. On 22 August 2002 Mr Young applied to set the judgment aside.
3. In order to understand the grounds of Mr Young's appeal, I should set out something about the background, which has led to these proceedings. The claimants in the proceedings are well known companies. The first claimant company carries on business as a designer, manufacturer and merchant of motor bikes and parts, fittings and accessories for those vehicles. The second claimant company is incorporated under the United Kingdom Companies Acts and is a wholly owned subsidiary of the first claimant. These companies are the registered proprietors of a number of relevant trade marks protecting the name and trade mark of BMW.
4. In 2001 the claimants became aware that a number of companies had been registered with the letters BMW as part of the corporate name. The sole director and major shareholder of these companies was Mr Young. They wrote to him and to the companies requiring a change of name. The names originally registered by Mr Young were BMW and www.bmw.com Ltd, but, exercising powers under Section 28 (2) of the Companies Act 1988, the Secretary of State required the companies to change their names. On 29 April the original registered names were changed to BMW Williams Ltd and BMW Publications Ltd. Mr Young registered yet another company on 19 December 2001 under the name BMW International Ltd. The address given for the companies was an address in Fulham.
5. As no responses were received to the letters sent objecting to the use of "BMW", the claimants started proceedings on 17 June 2002 alleging that the incorporation of the companies, including the BMW mark, was a threat to trade. They claimed that the corporate titles constituted a threat to carry out business in relation to the motor trade and that if the goods and services provided were similar or identical to those of the claimants there would be a likelihood of confusion on the part of the public.
6. The claim form was issued and served on the registered address of the companies at Brooks Studios, 50 Basuto Road, London SW6. As far as the claimants were concerned the claim form was validly served by post; it was not returned by the Post Office. As no acknowledgement of service was sent and no defence was filed they sought the default judgment which I have mentioned. That was obtained on the basis of a witness statement made by Alice Mary Gould. The claimants' evidence was that these documents were sent by post to the same address and had not been returned. It was in those circumstances that the application for the default judgment came before Mr Justice Park. Neither Mr Young nor anyone on his behalf attended. The order requested was made. Arrangements were made by the claimants' solicitors for copies of the order to be served on Mr Young and the named companies personally.
7. When it transpired that Mr Justice Park's order had not been complied with, Miss Gould wrote to Mr Young at two addresses, the Brook Studios address and another address given by Mr Young's ex-wife. The letter requested compliance with the order which had been made. Further letters were written. No response was received to any of them.
8. In his application to set aside the default judgment Mr Young said that no claims or evidence of the claimants had been seen by him, though he did say correspondence had been received by him in the past from Blair & Co and their agents. He questioned whether Blair & Co did have instructions from the claimants, noting that solicitors in Reading had acted for BMW in the past. He contended that the BMW companies registered by him were established in two fields, communications and alcoholic beverages. He denied that there had been any trade on behalf of the companies and denied that there had been or could be any infringement of trade mark. Today Mr Young has told me that the companies are dormant and there is no intention that they should trade. No notepaper or letter heads have been produced and no advertising of their activities has been made. He denies that there is any intention on his part or on the part of the companies to pass off. Mr Young told me that he had had a series of companies before 1997. He then suffered from medical problems for several years. He had previously been involved in the building trade. He had never been involved in selling cars though he did have interests in public relations and in selling motor bikes.
9. Mr Young's explanation is that when he came to register the companies he understood that "BMW" was available and that there was no objection to him using that. He objects to the entering of the default judgment against him on the basis that he did not know anything about the proceedings. He is critical in a number of respects of the manner in which the solicitors for the claimants have conducted the proceedings against him. These matters were put before Mr Justice Ferris on 8 November when the application to set aside the default judgment was heard. No formal evidence was adduced by Mr Young to back up his application, such as in the form of a signed witness statement. Mr Justice Ferris noted that Mr Young had produced three envelopes containing the claim form with other documents addressed to himself and the companies at the Brook Studios address. The envelopes had yellow stickers showing that the incorrect postage had been paid, but they clearly found their way to Mr Young somehow.
10. According to the judge, Mr Young had given conflicting accounts as to how this had happened - and whether the claimants had provided credible evidence - but the letters were delivered despite the incorrect postage. Mr Justice Ferris accepted the evidence put before him on behalf of the claimants, and found that service of the application for default judgment had been defective in the absence of any proper evidence from Mr Young to the contrary. The judge found there was nothing in any of the other points made by Mr Young, and therefore dismissed the application to set aside.
11. Mr Young wishes to appeal against the decision of Mr Justice Ferris. I have explained to him that in order to appeal he must obtain permission. Permission can only be granted if there is real prospect of the appeal succeeding. Mr Young has made a number of points both in his grounds of appeal and in a number of skeleton arguments submitted to the court, the most recent of which is dated yesterday, 9 June. Mr Young said that the judge should have found that the proceedings had not been properly served, that therefore the original judgment and order were irregular and Mr Justice Ferris should have set the orders aside. He also said the judge should have found that the companies had not traded and were registered with the Registrar of Companies as dormant. He said that there has been no infringement of trade mark or passing off.
12. Mr Young raises a question under the Human Rights Act saying that he has suffered an infringement of his Human Rights because he has been prevented from defending himself and bringing all the relevant issues before the court. He has also explained that he is concerned that, if this judgment against him is allowed to stand, it will provide a precedent affecting other cases and other litigants, and he is therefore concerned with that aspect of the case. He has constantly reiterated in his documents that he had never seen any of the documents in the proceedings against him. In those circumstances he says that he has a real prospect of the appeal succeeding.
13. Mr Young has made a number of additional points, including the point that, as an individual, he is not involved in any possible infringement of trade mark or passing off. This could only be a liability on the part of the companies. So, for all those reasons and for all the other reasons which he has set out in the documents, he says that the judgment should be set aside.
14. In my judgment, Mr Justice Ferris was entitled to refuse to set aside Mr Justice Park's judgment. In this case there has been no acknowledgement of service and there has been no service of a defence in time. It has not been shown by Mr Young that he did not receive the proceedings as a result of the methods of service used by the claimants. If he had been able to establish that he had not received them then there would be grounds for setting aside the default judgment, quite apart from the issue of whether there were any merits in the defences which Mr Young wishes to raise. The judge, on the basis of the evidence before him, made a finding of fact as to proper service. There is no real prospect of that finding of fact being disturbed by this court on an appeal. I would reject the argument that the default judgment must be set aside. Quite apart from that, if it is necessary to consider the substance of the defences, I am of the view on the material before me that there is no real prospect of Mr Young or his companies being able to succeed in their defence of the claims of passing off and infringement of trade mark. I therefore conclude that there are no real prospects of this appeal succeeding.
15. If I were to give Mr Young permission to appeal the likely result is that not only would he lose the appeal but he would be at the receiving end of another order to pay the claimants' costs. That would be of no assistance to him in his wish to set up in some kind of business using companies. The name "BMW" is sufficiently well known to have alerted Mr Young to the risks that were involved in setting up a string of companies, even though they have not started to trade, using the BMW name, which is protected not only by the law of trade marks but also by the general law of passing off.
16. For all those reasons this application is refused.
Order: Application refused