IPEC reduces cost award by 50 per cent following settlement offer

The costs decision in Bocacina Ltd v Boca Cafes Ltd followed the trial judgment, delivered last October, in which the claimant succeeded in a passing-off action against a café business that had set up in close proximity to the claimant’s restaurant. The Intellectual Property Enterprise Court (IPEC) found that a significant number of members of the public would be likely to be confused into thinking the two businesses were connected given their geographic proximity and that both words started with ‘Boca’. The defendant’s registered trademark BOCA BISTRO CAFÉ was declared invalid.

In the costs judgment, Daniel Alexander QC, sitting as a judge of the IPEC, awarded the claimant 90 per cent of its costs up until the date of the defendant’s settlement offer and awarded a reduced recovery of 50 per cent from that date. The settlement proposal had contained an offer to change the name of the defendant business and to surrender the trademark. In the judge’s view, this effectively amounted to giving in and leaving the claimant with no cause for complaint nor grounds for continuing the litigation. The judge considered that after the date of the settlement the dispute became one about costs…

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