To Be, Or Non 02 Move ...

Now for the promised weblog on O2 Holdings Ltd as well as some other v Hutchison 3G UK of Britain as well as Northern Republic of Ireland Ltd [2005] EWHC 344 (Ch), showtime noted on the LexisNexis All England Direct subscription service as well as and then swiftly posted on to BAILII in full.

This was a spat betwixt O2 as well as 3, 2 businesses that furnish services inwards the UK's crowded as well as fell mobile telephone market. Since O2's holler was the same equally the chemic formula for oxygen the fellowship adopted a ‘blue bubble imagery’ as well as registered merchandise marks which included bubbles. Rivals 3 launched comparative advertisements on TV as well as elsewhere, comparison 3 amongst O2 as well as featuring a bubble sequence shot inwards dark as well as white. O2 sued for merchandise grade infringement as well as passing off. Although O2 failed to obtain an interim injunction, the courtroom ordered a speedy trial. In this hearing O2 applied to the courtroom to refer 12 questions to the European Court of Justice (ECJ) for a preliminary ruling. According to O2 this reference should endure made earlier the trial on the merits of their claim. It was inevitable, they argued, that a reference would endure made at some phase and, if it was made now, the ECJ's responses would or mightiness eliminate, cut down inwards range or at to the lowest degree touching on substantial areas of factual inquiry. 3 opposed the application on the the world that a reference to the ECJ was unnecessary at this phase as well as the Vice-Chancellor, Sir Andrew Morritt, agreed.

3: pricking the bubbles of O2's hopes of a reference to Luxembourg

The guess agreed that the conventional sentiment was that the facts should endure institute earlier a reference was made. It was clear, however, that that was non an indispensable requirement. In this case, though, the courtroom could non nation that it would definitely necessitate the answers to the questions O2 wanted to refer. H5N1 reference to the ECJ at this phase would so endure premature as well as belike incomplete. If so, it would truly delay the trial as well as prejudice the lineament of bear witness to endure adduced at the trial. None of the 12 questions would arise if 3 succeeded inwards making practiced its counterclaim that each of O2's bubble marks was devoid of whatever distinctive character.

thinks this approach is correct. We induce got already seen the mess that results when the same dispute gets referred to the ECJ twice (in the Boehringer Ingelheim case) as well as the delays that effect from it. Merpel says, "what a shame the ECJ doesn't fast-track references that arise inwards fast-moving areas similar commercial police line as well as intellectual property, where trouble organisation decisions induce got to endure taken, spell leaving the tardily constitutional as well as institutional materials to endure slow-tracked instead".

Bubbles here and here
Power of 3 here and here