War of the roses
3 August 2011 | By Katy Dowell
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“This is a case about Yorkshire pride, in more ways than one,” so says Mr Justice Arnold in the opening line of a decision handed down last week (22 July) over who has the right to use a white rose symbol.
Arnold J’s comments may be the highlight of this bitterly fought battle, which has seen an intense rivalry between feuding breweries seep into the mindset of the litigators representing them and spill out into the court where they fought.
In the claimant corner sat Yorkshire’s Samuel Smith Old Brewery (Tadcaster), with Travers Smith partner Dan Reavill instructing Three New Square’s Denise McFarland.
Leading for the defendant, rival Yorkshire brewer Philip Lee, trading as Cropton Brewery, was Walker Morris partner Patrick Cantrill instructing Hardwick Chambers’ Mark Engelman.
At the heart of the dispute was whether Cropton Brewery had infringed Samuel Smith’s copyright when it used a white rose on the label of its Yorkshire Warrior Ale, which was sold to Marks & Spencer.
According to Arnold J this was a dispute that could have been settled amicably had the parties decided to come together through mediation.
In his judgment he states: “The dispute is one which ought to have been capable of settlement out of court a long time ago. Instead it has grown into a case which is out of all proportion to what is at stake in commercial terms.
“One explanation for this is Yorkshire pride; but I fear the English legal system bears a measure of responsibility as well.”
Later the judge reveals that “the costs are out of all proportion to what is at stake, particularly from Cropton Brewery’s perspective”. The defendant brewery’s case was funded on a double conditional-fee basis, but whether this helped increase costs, the judge said, could not be certain.
It was, as the judge highlighted, a “score draw” result.
Cropton was ordered not to use the white rose design on Warrior beer, but there was no order for payment of damages to the claimant.
The defendant was found to have breached Samuel Smith’s trademark, but only since October 2009, and only on its Yorkshire Warrior beer bottles. There was no trademark infringement on its Yorkshire Bitter bottles.
He said most people would take the white rose to represent “geographical origin” rather than “the trade origin” of the beer.
A counterclaim launched by Cropton in October 2009 alleging that the initial letter sent by Samuel Smith’s lawyers amounted to an unjustified threat of legal action was rejected.
The judge found that the “person aggrieved” by the letter was not Cropton but its customer Marks & Spencer. The label the parties were in dispute over had been designed by the store and Samuel Smith’s letter had in fact been sent to the retailer but not on to the brewery.
“There is no evidence at all that the threat adversely affected Cropton Brewery’s commercial relationship with Marks & Spencer at all,” the judge found. “On the contrary, Marks & Spencer continued to purchase Yorkshire Bitter from Cropton Brewery under the same label for over two and a half years following the making of the threat.”
Each side would have built up significant costs that they will have to pay themselves and neither side can claim an all out win. It may have been a case about Yorkshire pride, but it was one that has no doubt cost both sides dearly.