Gary Fearns t/a Autopaint International -v- Anglo-Dutch Paint and Chemical Company Ltd [2008] EWCA Civ 99

19 February 2008

Gary Fearns, who sold car paint mainly through franchises, brought a claim for passing off and trade mark infringement due to the fact that Anglo-Dutch, Fearns paint supplier, had started selling the paint directly to his franchisees causing Fearns to lose the franchises. Anglo-Dutch successfully argued that Fearns had given consent for it to sell the paint to the franchisees because Fearns could not afford to supply it himself. The Judge held that although Anglo-Dutch had been given permission its actions had gone outside of the permission and so it was liable for passing off and trade mark infringement. However the Judge held that the unlawful conduct of Anglo-Dutch which had been outside the scope of the permission was not the cause of Fearns losing the franchises. Fearns appealed both the finding of permission and claimed that the Judge had erred in deciding the issues in relation to causation as they should have been decided at an inquiry as to damages. The Court of Appeal held, after the January 2008 appeal, that the Judge had not erred in finding that Fearns had given permission but that the Judge should not have made a decision about causation without there being a full investigation into the extent of the breaches. Therefore Fearns was still entitled to bring evidence at an inquiry to show that the loss of franchises was due to Anglo-Dutch’s infringements. Tom Moody Stuart represented Anglo-Dutch.