Clash of the beer pongs - Breakthrough Funding Ltd v Nearby Media Ltd
Updated: Oct 25, 2020
A recent High Court decision (Breakthrough Funding v Nearby Media  EWHC 2271 ch) follows on from an interim injunction which was granted by Arnold J earlier in the year. The case has a very complicated factual background. In essence, it concerns a business relationship which soured leading the Defendants to decide to 'go it alone' using the business model, copyright materials and trade mark of the Claimants. They also used some physical items, most notably four beer pong tables.
This led to a claim for breach of contract, trade mark infringement, passing off, breach of confidence, conversion and copyright infringement. There was a counterclaim for, amongst other things, breach of contract and fraudulent misrepresentation but insufficient evidence was provided to support the counterclaims.
Beer Pong, as the judge, Mr Fancourt QC, put it "is a game originating in the United States played in pubs and bars and traditionally involving the drinking of beer". The Claimants developed "britpong" as a UK alternative and built the foundations of a successful business. As this was outside the First Claimant's main business activity it sought to find a business partner to focus on the day to day and take a significant percentage of the equity in the Second Defendant (Britpong Limited - a subsidiary of the first claimant).
The relationship soured before the deal could be signed but the Defendants nevertheless announced that they had "acquired" Britpong Limited and proceeded on that basis including the use of the trade mark in advertising, including social media hashtags although they nominally attempted to rebrand as Bar Pong UK, they made no attempt to dispel the confusion they created both in announcing the acquisition and starting many commercial relationships whether sponsorship or deals with particular locations.
More controversially, despite the Order of Arnold J prohibiting use of the britpong mark and various specific events, they held a Bar Pong event in the Walkabout at Temple in London, literally a stone's throw away from the legal capital of London including the Royal Courts of Justice and the Rolls Building where the Order will have been made.
It will not come as a big surprise that the Claimants succeeded in all of their claims. There was no obvious fall out for the Defendants breach of the injunction in the judgment. Finally, because intellectual property claims are subject to a split trial on liability and quantum in the UK, this may be something which is considered as part of the quantum calculation mix.