Fresh Trading Ltd v Deepend Fresh Recovery Ltd & Anor

It is common ground that copyright subsists in the logo as an original artistic work. The dispute concerns the title to the copyright. Fresh puts förward a number of possible scenarios: (1) that Fresh is the legal owner of the copyright or (2) that Fresh is the owner in equity or (3) as a minimum, that Fresh has an implied exclusive licence under the copyright. The Defence and Counterclaim maintains, on the other hand, that Deepend Fresh is now by assignment the owner of the copyright in the logo as well as the owner of the copyright in other

Fresh is the parent company of Innocent Limited through which the business of Innocent smoothies is now conducted. The previous owner of the business was a company originally also called Fresh Trading Limited but then re-named Naked Products Limited following the incorporation of the present Fresh. Naked Products Limited was dissolved in 2010. Some months before the dissolution, all its intellectual property rights were assigned to Fresh. There is no issue between the parties over the validity of the assignment and no dispute over Fresh's title to sue. For the purposes of this judgment I shall simply refer to "Fresh" without distinguishing between the former company and the present company unless it is necessary to do so. Only where it is so necessary, I shall adopt terminology sometimes used before me, that is "old Fresh" and "new Fresh".

Deepend Fresh is, as its full name might suggest, a company formed to lay claim to intellectual property rights in work commissioned by Fresh from a design agency förmerly called Deep End Design Limited ("Deepend") and then re-named Deepend London Limited. It went into liquidation along with its then parent company, Deepgroup Limited, on I October 2001. However, just before the final creditors' meeting was called Mr Chappell, the Second Defendant, took an assignment from the liquidator of, amongst other matters, intellectual property arising out of work which had been carried out by Deepend for Fresh for f3,000. Mr Chappell is an investment banker who thought that there might

Richard Reed, Adam Balon and Jon Wright had discussed from time to time, while they were students at St John's College, Cambridge in the early 1990s, the possibility of setting up in business together. But it was on a snowboarding holiday in February 1998 that they came up with the idea of establishing a company to sell smoothies. At this time, Mr Reed was working in advertising; Mr Balon and Mr Wright were each working for different management consultants.

After a period of testing of ingredients and mixtures and some rudimentary test marketing, Messrs Reed, Balon and Wright gave up their jobs in order to concentrate on the new venture. They were by September 1998 looking for office premises. Mr Reed heard that office space might be available at a design agency, Deepend. However, after the initial introduction to Deepend, discussions ensued with a view to Deepend assuming the design role for all aspects of the new business. Deepend was a young expanding company of entrepreneurs, and Mr Reed was impressed with their enthusiastic and dynamic approach to business. For their part, Deepend was also impressed with the possibilities for this new business venture. Mr Lockton, a founder and the managing director of Deepend, was clearly very keen on his company being involved, and - a factor of obvious attraction to a start-up company - Deepend was willing to work as the design agency for shares in the new company rather than for immediate payment for its design work.

In the above circumstances, Mr Reed set about drafting a contract to govern relations between the two companies. There seems to have been complete agreement from the outset that Deepend was to provide the full range of design services. In Mr Reed's words:

The main subject of the negotiation concerned the level of shareholding for which Deepend was to work. After some discussion Mr Reed and Mr Lockton came to an agreement. That agreement, which I shall simply call "the

The provisions of the Contract are of central importance in the present case. The Contract records that it is made between Deep End Design and Fresh and is entitled 'Heads of Agreement'. Under the heading 'Obligations' Deepend's obligations are described:

The critical provision for the purposes of the present dispute is Clause 5. It is headed "Intellectual Property' and provides:

What clearly emerged from the evidence was that the Contract was fully agreed by both parties. As a matter of good administration it may not in fact have been signed. This was in dispute. But all parties proceeded entirely as if it had been. As Mr Reed put it: "We had done the deal". Indeed, there seems to have been an assumption at Deepend that the Contract had been signed. Thus, from the end of October 1998 Deepend started to work flat out on its design work. As

There was considerable investigation in cross-examination of the Fresh witnesses of the extent to which Deepend had carried out various aspects of its design work. But, it is not necessary for me to conduct any detailed analysis of what Deepend did. The scope and extent of their work does not impinge on any issue before me. But, it is right to record that Mr Reed unreservedly acknowledged the effort put in by Deepend. He summed up his feelings towards Deepend: "They worked extremely hard, they were good guys and they were a pleasure to work with, certainly for the majority of the time". And: ' I am not belittling what they did at all. I am on record repeatedly saying I appreciate what they did and they worked really hard".

I shall not dissect the evidence about what Deepend was doing by way of design from time to time, largely in the person of Mr Streek, known as 'Gravy'. But some key events were that (1) the brand name 'Innocent' was chosen for the smoothies at about the end of January 1999 after it was discovered that the previously preferred name 'Naked' was already registered as a trade mark and

There was some difference of recollection as to the precise circumstances of the Dude logo's creation. Thus, Mr Wright recalled having suggested to Mr Streek a face with a halo above, which Mr Streek then drew. The Deepend witnesses disagreed that the initial idea came from Mr Wright. Nevertheless, differences in the detail of recollection may not matter. It is common ground between the parties that the logo was first drawn by Mr Streek. He was the author of the artistic work. It is also common ground that Fresh was very happy with what Mr Streek had produced. It was a simple but eye catching design. The logo was adopted by Fresh with enthusiasm. It has been used ever since in Fresh's marketing material. It has certainly become identified with Fresh and Innocent smoothies and was indubitably "approved" for the purposes of clause 5.1 of the Contract.

In the meantime, Deepend continued to work on the design of bottles, labels, point of sale material and the Fresh website. In particular, Deepend designed a website which portrayed a virtual "gym" — a novelty which did not meet with Fresh's wholehearted approval. There was some delay in launch of the Fresh products due, to some extent, to Deepend not managing to produce an entirely acceptable bottle design. However, eventually the Innocent smoothies were launched at the end of April 1999.

It is right to say that in the summer of 1999 Fresh's keenness for Deepend's design work gradually began to diminish. Mr Reed became not wholly satisfied with every aspect of Deepend's design work. Whether or not he was justified in this attitude does not matter for present purposes; appreciation of design is, of course, very much a matter of subjective judgment. But the upshot was that Mr Reed determined to try and achieve a reduction in Deepend's share entitlement. Under the Contract, Deepend would already have been entitled to a 1.52% shareholding in Fresh with the launch of the smoothies in April 1999. But neither Deepend nor Fresh paid any attention to the formality of share allotment. This was ascribed by both parties to pressure of work and accelerating expansion, particularly in the case of Deepend.

On 15 July 1999 Mr Reed and Mr Lockton had a meeting at which it is common ground that Mr Reed raised the question of revising Deepend's overall share entitlement to 2%. Mr Reed's evidence was that Mr Lockton accepted this revision at the meeting, whereas Mr Lockton said that he did not finalise anything at the meeting. But, some months later, on 4 November 1999 Mr Reed wrote to Mr Lockton "to formalise the agreement reached" on 15 July 1999. The letter described adjustments to the "equity remuneration" with a not wholly accurate recital of what was in fact in the Contract and concluded:

The reference to completion of a Fresh Trading share issue in the letter of 4 November 1999 was, however, being overtaken by changes to the Fresh corporate structure. The old Fresh had been renamed Naked Products Limited with the company formerly called by that name becoming the new Fresh in 1999. Then in 2000 Innocent Limited was incorporated as a subsidiary of Fresh with the smoothie business being hived off to Innocent Limited. There were also changes for Deepend. It assumed the name of Deepend London Limited and became a subsidiary of Deepgroup Limited. No-one seems to have given

By the middle of 2000 it is evident from internal Deepend emails that there was dissatisfaction with the Fresh relationship. Mr Lockton was of the view: "If we can strike a deal where we take our equity and run then we should Then, by the end of 2000 the dotcom bubble had burst. During 2001 Deepend and its parent came under increasing financial pressure. The question of a shareholding in Fresh was far from being a priority for Deepend. As for Fresh, the smoothie business was beginning to grow; Innocent smoothies were going on sale in supermarkets such as Waitrose. But the business was still relatively small. For Fresh also the issue of a small shareholding to Deepend was not a priority. Nevertheless, there was some communication in April 2001 between Mr Balon of Fresh and Mr Russell, the Group Finance Director of Deepgroup Limited, with a view to Deepgroup Limited acquiring a 2% shareholding in Innocent Limited. Their communications seem to have been wholly amicable. Whilst there is some confusion in the documents over the precise corporate structure envisaged at the time, it does seem that the principle of Deepend or its parent obtaining a 2% shareholding in the company operating the Innocent smoothie business was not at all in contention.

It was Mr Lockton's evidence that towards the end of 2001 it was suggested to him to by Mr Kubik that he contact Mr Reed to take up the question of the shares due to Fresh. Mr Lockton understood that Mr Kubik himself was not interested in pursuing shares; he was only interested in cash realisations. Mr Kubik for his part had no recollection of any conversation with Mr Lockton about Fresh at all. Indeed, he never even had sight of the Contract.

It is nevertheless common ground between the parties that Mr Lockton did telephone Mr Reed and inquire about the shares. But, the evidence of Mr Lockton and Mr Reed diverged over the content of the conversation. According to Mr Lockton, he was forcefully told by Mr Reed that since Fresh was in liquidation there was no way they would get anything. Mr Reed would only deal with the liquidators. According to Mr Reed, he told Mr Lockton that Fresh had failed to follow up the matter of the shares, and Mr Lockton was philosophical about it. In any event, there was no further communication at all about the shares. Mr Lockton considered that realistically the liquidator was not interested in pursuing something of very dubious cash potential. In any case, neither Mr Kubik nor Mr Lockton ever addressed their minds as to the potential

Whilst Mr Kubik had apparently no interest in pursuing Fresh for the shares, it came to the attention of the Second Defendant, Mr Chappell, that it might nevertheless be possible to turn some possible intellectual property claims of Deepend to his financial advantage. Mr Chappell was an old friend of Mr Streek from whom he heard about these potential claims. In June 2006 Mr Chappell approached Mr Kubik to sound out the possibility of a company called IP Renaissance Limited acquiring from the liquidators some of Deepend's possible intellectual property claims. His email of 6 June 2006 refers to a number of possible claims, including one against Fresh, although it was Mr Chappell's evidence that ultimately none of these was pursued other than a claim against Fresh. There was no immediate follow up but by October 2007 Mr Chappell had learned that the liquidation was about to be concluded. At the last minute before this happened, Mr Chappell concluded on 10 October 2007 a deed of assignment with the liquidators under which he acquired for the sum of E3,000 all Deepend's interest, if any, in (amongst other matters) the copyright in all works created by Deepend for Fresh.

Mr Chappell's letters produced no reaction. He therefore decided to incorporate Deepend Fresh with a view to that company laying claim, as its name suggests, to any rights which might have been acquired by Deepend when it had been acting for Fresh. The company was incorporated with Mr Chappell and Mr Streek being each 40% shareholders and Mr Lockton holding 20% of the shares. On 16 April 2009 Mr Chappell then assigned to Deepend Fresh all the rights which he had previously acquired from the Deepend liquidators, and on 20 April 2009 Deepend Fresh commenced invalidity proceedings before the Office for the Harmonisation of the Internal market ("OHIM") in respect of the Fresh community trade mark consisting of the Dude logo. The basis of the challenge was that the copyright in the logo was owned by Deepend Fresh. Mr Chappell notified Fresh of the challenge on 28 April 2009.

Against the above background, I turn to consider the issues which I have to decide on the Claim and Counterclaim. There is a measure of common ground between the parties. Thus, it is not in dispute that Mr Streek was the original author of the artistic work consisting of the Dude logo. Similarly, employees of Deepend were the authors of the other copyright works identified in paragraph 51 of the Counterclaim ("the other Counterclaim works"). It is also not in dispute that (l) any copyright rights formerly vested in the old Fresh are now by assignment vested in the new Fresh and (2) any copyright rights formerly vested in Deepend are now by assignment and further assignment vested in Deepend

The live issues before me are as follows:

Fresh's primary case is that, even though an executed version or even copy cannot now be found, the Contract was in fact duly executed by Mr Lockton for Deepend. This was the clear evidence of Mr Reed who recalls details such as having placed the executed contract inside a blue folder. Mr Reed's recollection is supported by Mr Streek's belief that the Contract had been signed, as he subsequently so informed Mr Chappell. Mr Lockton's evidence went no higher than saying that he could not remember having signed the

Mr Purvis submitted that copyright in the Dude logo would simply have vested in Fresh as clause 5.1 of the Contract said, i.e. upon its approval by Fresh.

If for whatever reason the requirements for a legal assignment were not fulfilled, then this was plainly a case of an equitable assignment. A contract to assign in the absence of the formalities necessary for a legal assignment is a paradigm case of an equitable assignment. The fact that in the event no shares were ever in fact allotted to Deepend following the liquidation of the Deepgroup companies did not mean that there was no effective assignment in equity. There was perfectly good consideration for the agreement to transfer copyright in the covenant to transfer the shares. Finally, under this heading Mr Purvis submitted that, if for some unknown reason the Contract was not binding, then this would be a classic case for implication of an (equitable) assignment or, at the very least, an exclusive licence in accordance with the principles set out in Robin Ray v Classic FM [1998] ESR 622.

Turning to the Counterclaim, Mr Purvis invites me to dismiss it on the basis that it is Fresh which is the copyright owner. However, if I were to find against Fresh, then Mr Purvis submits that this is the plainest possible case of acquiescence. No copyright claim was ever suggested by Deepend and only hinted at by Mr Chappell for the first time in March 2009. Over a period of some 10 years the Dude logo was being used by Fresh on an ever increasing

Finally, Mr Purvis submits that, given the history and the way in which the Deepend Fresh claims came to be mounted, it was entirely appropriate to have joined Mr Chappell as a Defendant to the proceedings. His presence has not increased the costs in any respect.

For Deepend Fresh Mr Silverleaf QC begins from the starting point that, as is not in dispute, Mr Streek of Deepend was the author of the Dude logo, and he and other Deepend employees were the authors of the other Counterclaim works. Hence, Deepend was the first owner of copyright. And, Mr Silverleaf submits, there has never been any assignment valid either at law or in equity. At most Fresh was simply a bare licencee under the copyright with a licence terminable when the agreed remuneration by way of share allocation was not made.

Mr Silverleaf invites me to find that on balance the Contract was not in fact signed. He accepts that on the evidence there was no reason why it should not have been signed. But, he submits that, if it had been signed, it is inconceivable that no signed copy has ever come to light in the possession of Fresh, Deepend or any third party. Nor is there any reference to a signed contract in any of the documentation. A signed written document would, of course, be essential before there could be any valid legal assignment. Moreover, even if I were to find that the Contract had been signed, there would still be no valid legal assignment. Section 90 of the 1988 Act could not apply because clause 5.1 applies to future works. There cannot be a legal assignment of future copyright, aside from the specific case covered by section 91 of the Act. At most there could only be an agreement to assign. And section 91 of the Act can have no application in the present case because the Contract does not provide for copyright to vest in Fresh on the creation of a work. Under clause 5.1 copyright remains in Deepend and is only transferred to Fresh if and when a work is approved by Fresh.

Not only was there no legal assignment but, in fact, there was no concluded binding agreement and hence not even an agreement to assign. Mr Silverleaf draws attention to the express "subject to contract" rubric, to the fact the Contract is headed Heads of Agreement, to the fact that certain documents suggest that further formal documentation was envisaged and to the fact that the Contract only addresses "headline" terms rather than matters of detail. But, if the Contract were a binding agreement then it is suggested that, reading the document as a whole, the copyright in works created by Deepend was only to pass when Deepend was paid, i.e. by receipt of the agreed shares. Unless and

The contention that Fresh was in any event an equitable assignee was also resisted on the ground that an equitable assignment could only arise where the right to call for a legal assignment was enforceable by specific performance. Here it was said that equity would not grant specific performance in favour of Fresh because Fresh had refused to fulfil its side of the bargain, that is to allot shares to Deepend. In all the cases where there had been held to be an equitable assignment of copyright the creator of the copyright work had been paid for his work. It would be wrong to grant Fresh the copyrights without having to give any consideration at all. In his closing submissions Mr Silverleaf also alluded to a concept which had not featured in the pleadings, that is an unpaid vendor's lien; but in reply he expressly disclaimed reliance on some unpaid vendor's lien as an additional reason for refuting the existence of an equitable assignment.

As for estoppel or acquiescence, the critical matter was whether it would be unconscionable for Deepend Fresh to enforce its rights. The mere passage of time is not enough: cf. Fisher v Brooker [20091 1 WLR 1764. Mr Silverleaf submits that Fresh never relied upon any act or statement of Deepend. It simply relied upon its own (incorrect) understanding of the legal position. Fresh suffered no detriment in consequence of anything said or done by Deepend. The position in which it now finds itself is attributable to its own conduct in taking the benefit of the copyright works without making any payment at all. As for the contention that, regardless of acquiescence, estoppel or laches, there might be a freestanding ground for denying injunctive relief, the authority on

In conclusion Mr Silverleaf invited me to say that here the joinder of Mr Chappell as a personal Defendant was wholly unwarranted. He is not making any personal claim to copyright. His joinder was merely an oppressive device. Whatever the outcome of the dispute, the claim against Mr Chappell personally should be dismissed with indemnity costs.

Whether or not there was a legal assignment of copyright depends on section 90 or section 91 of the Copyright Designs and Patents Act 1988. Mr Purvis relies on these sections in the alternative. They provide as follows:

The first question for consideration is whether or not Deepend in fact signed the Contract, for a signed document is a requirement of both sections. Mr Reed firmly recollects that Mr Lockton signed the Contract and gave evidence of relevant points of detail, although it is right to say that he agreed that his recollection had firmed up over time. Mr Reed was undoubtedly an entirely honest witness. Furthermore, Mr Streek of Deepend also assumed that there was a signed contract, and Mr Lockton could not say positively that he had not signed. Moreover, there was complete acceptance on all sides that the Contract was agreed and there was no reason why signature should have been withheld. These are powerful points. Nevertheless, I have not been persuaded that I should find as a fact that the Contract was actually signed.

No signed copy has, of course, been located despite the most extensive search. I agree with Mr Silverleafthat it is highly improbable, if the Contract had been signed, that there would not have been a single copy of the signed document retained among the documents at either Fresh or Deepend. Furthermore, it would have been the signed version which would have been likely to have been sent to third parties such as solicitors and accountants. I have certainly borne in

Given the absence of signature, I am unable to find a legal assignment. But, I also consider that there would in any case be other difficulties in Fresh's way. As for section 90 of the 1988 Act, I accept Mr Purvis's submission that there is no particular form of words prescribed for an assignment. What is required is a clear intention to assign. It must nevertheless be said that there is not here even a clear intent to assign the copyright in a work which may be created. There is only intent conditional upon Fresh's subsequent approval. The difficulty here is that when the Contract was made there was no work in which the copyright could then be assigned. There were only potential works which might come into existence and which then might, or might not, be approved by Fresh. It has long been the position that (aside from statute) there cannot be an assignment of a future work but only an agreement to assign. Both the leading textbooks, Laddie Prescott & Vitoria on The Modern law of Copyright and Designs (4th ed) and Copinger and Skone James on Copyright (16^th ed) make this clear distinction between an agreement to assign and an assignment. Section 91 of

In the present instance, however, I also think that section 91 of the 1988 Act cannot apply. The section is applicable to a "future copyright" which is defined as a copyright which will or may come into existence on creation of a work or the occurrence of an event. The problem here for Fresh is that section 91 has effect, if at all, "on the copyright coming into existence". It is then that an agreement may have the effect of creating a legal assignment. However, in the instant case the copyright in all works created by Deepend employees vests in Deepend "on the copyright coming into existence". It is only in the case of those works "subsequently approved by Fresh" that copyright is to be transferred to Fresh.

I therefore conclude that neither section 90 nor section 91 of the 1988 Act assist Fresh. It is at most an equitable rather than legal assignee of the copyright in the Dude logo and the other Counterclaim works.

Both Fresh and Deepend were united in regarding the Contract as having been agreed. Indeed, not only was it implemented by Deepend but there was no dispute that Deepend was contractually entitled to shares in Fresh. Nevertheless, it is now contended that the Contract was not in fact a binding agreement. Leaving aside the words "subject to contract", the Contract certainly reads like an intended binding agreement. It may be that, as Mr Silverleaf says, the parties would have intended more specific agreement of detail in due course. But that is a common situation and does not indicate the absence of a present intent to be bound. Similarly, I attach no importance to the title "Heads of Agreement". Again, it is common in the commercial world for heads of agreement to be concluded and to be contractually binding, even though some further future agreement may be contemplated. In RTS Ltd v Molkerei mois Midler GmbH & co KG [2010] 1 WLR 253 Lord Clarke of

As for the words "subject to contract", I do not place any reliance on Mr Reed's evidence as to his own subjective intent when using the words, understandable though this intent may be for a non-lawyer. I must, of course, consider the objective position and the normal inference from these words that parties do not

As for the suggestion that on the true construction of the Contract copyright in the Dude logo was only to vest in Fresh upon issue of the agreed shares to Deepend, I can see no basis for the suggestion in the language of the Contract itself. The obligation to transfer a copyright under clause 5.1 and the obligation to allot shares under clause 4 are concurrent conditions. Neither is expressed as a conditional obligation. Indeed, the obligation to allot shares could in theory (if unlikely in practice) arise even if no copyright became transferable to Fresh under clause 5.1. Mr Lockton said that it was normal in the design world for a client only to obtain copyright upon payment and this was the effect of Deepend's standard conditions which he assumed, although he did not specifically recall, would have been sent to Fresh. I can place no weight at all on this evidence. The Contract was undoubtedly not a standard client/design agency agreement. It was specially tailored ror the circumstances. Moreover,

Undoubtedly, implementation of the obligation to allot shares to Deepend proceeded at a leisurely pace. Neither Fresh nor Deepend exhibited any urgency in dealing with the matter. Perhaps, neither party regarded the possession of a very small shareholding in Fresh as being of much, if any, value. Nevertheless, there did continue to be some fairly desultory communication about it. Whilst Mr Reed wished to negotiate Deepend's shareholding downwards to 2% from the contractual 3.75%, the discussions over granting shares in Innocent Limited rather than old Fresh and to do so in favour of Deepgroup Limited suggest a willingness to fulfil the substance rather than the letter of the agreement. I do not accept that Fresh ever "refused to pay". The high water mark of Mr Silverleafs submissions is Mr Lockton's disputed version of what was said by Mr Reed in the telephone conversation following the liquidation. However, even on Mr Lockton's disputed understanding there was no outright refusal to honour Fresh's contractual obligations. Mr. Lockton's summed up his understanding of Mr Reed's attitude in this passage of his evidence:

Not only was there no refusal by Fresh to honour its contractual obligations but also I do not consider that actual allotment of shares to Deepend would be a precondition for specific performance to perfect the clause 5.1 obligation. Such allotment is now, of course, impossible; both old Fresh and Deepend have long since dissolved. But I do not think that this can affect the position: cf. Peer International corp v Termidor Music Publishens Ltd [2004] RPC 22 at [76]

In the light of my conclusion as to the Contract and the effect of its express terms, it is unnecessary for me to decide what the position would be if there were a requirement to make some implication following the principles set out in Robin Day v Classic FM [1998] FSR 622. Indeed, it would be rather an artificial exercise for me to attempt to do so. I shall merely say that to my mind there would in any event be much to be said for the implication of an equitable assignment of copyright in the Dude logo and the other Counterclaim works. They were created specifically for Fresh and approved by Fresh for the purposes of the Fresh business. Fresh itself collaborated with Deepend over the production of design materials generally, even though Fresh employees may not have been the actual authors of specific works. As Mr Wright put it in evidence: "it was a close collaborative process where ourselves and Deepend were working together to iterate things and improve on them". It would be wholly unrealistic to envisage Deepend using works which were employed as Fresh marketing materials for themselves or for other clients. Moreover, given the potential effect on the Fresh business, the possibility of licence termination does to my mind tend to militate against the implication of a mere licence.

My conclusions in relation to equitable assignment also render it unnecessary for me to decide questions of acquiescence, estoppel and laches. But, I should indicate that, if I had found that Fresh had no legal or equitable interest or even an irrevocable licence in the copyright in the Dude logo, my inclination would have been to reject a notion that Deepend Fresh is now able to obtain injunctive relief against Fresh.

The lapse of time since the creation of the work is considerable. During this time Fresh has built up from small beginnings a very substantial business indeed. The Dude logo has become fully identified with Innocent smoothies in the public perception. Deepend initially made every effort to contribute to the success of Innocent smoothies under the insignia of the Dude logo. Thereafter,

It follows from my conclusion that Fresh has title in equity to the copyright that the Counterclaim must be dismissed.

I agree that the joinder of unnecessary parties to an action may be oppressive and is thoroughly undesirable. Nevertheless, I am of the view that here it was not inappropriate to have joined Mr Chappell as a personal Defendant. Although he had never himself had any involvement with Deepend, he was the individual who made the acquisition from the liquidators and first intimated a possible claim. He was the person who arranged for the creation of Deepend Fresh, and the assignment to it, and who was responsible for the institution of the OHIM cancellation proceedings.

There is, of course, no need to demonstrate a cause of action against a Defendant where declaratory relief is sought. The history of the way the

In the result, I find that Fresh is the owner in equity of the copyright in the Dude logo and the other Counterclaim works and shall make a declaration accordingly. The Counterclaim is dismissed. I shall hear the parties on the