Rough Ride for Smoothie Company Following Innocent Loss of Intellectual Property

Fresh Trading (“Fresh”), the maker of Innocent Smoothies, has successfully proven its ownership to the “Dude” logo, following a legal challenge.

Fresh had applied to the High Court for a declaratory judgment that it was the owner of the cartoon face and halo logo which is famously used on its smoothie products, after it had been previously decided that the intellectual property rights belonged to a third party.

The logo was originally created for Fresh by a design agency, Deep End Design (“Deepend”). Fresh and Deepend had an agreement which stated that the ownership of all rights in created work which was approved by Fresh, would be transferred to Fresh.

Following the liquidation of Deepend and its parent company, an opportunistic investment banker, Andrew Chappell, obtained the intellectual property rights and any claims for enforcing those rights, from the design agency. Mr Chappell subsequently established the company Deepend Fresh Recovery (“DFR”) and initiated a claim for intellectual property infringement by Fresh.

Fresh’s trade mark was deemed invalid on the ground that use of the mark would infringe DFR’s copyright. This was a decision appealed against by Fresh, declaring that it was the rightful owner of the Dude logo.  The Deputy Judge rejected Fresh’s contention that Deepend’s intellectual property rights had been legally assigned by their contract as there was no evidence of a signed contract. Nevertheless, the Judge was willing to find that there had been a valid contract which amounted to an agreement to assign the copyright in future work and that this gave rise to an equitable assignment of the copyright, once the contractual conditions for the assignment were satisfied.

Although Fresh ultimately achieved a judgment in its favour and no doubt at great expense, the case demonstrates the critical importance of properly protecting and documenting transfers of intellectual property and ensuring that your business is aware of the terms on which it is entering into contracts with third parties.

Forbes Solicitors regularly assists businesses and individuals with identifying and protecting the intellectual property in brands and wider business interests.  For further advice and assistance, please contact John Pickervance in the Business Law Department by telephone on 0800 037 4628 or via our Contact Form.

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