Going with the FLOW
A local company’s bid to stop another Barbadian entity and associated organisations from using the business name “FLOW” while they battle it out in court has failed.
High Court Justice Jacqueline Cornelius dismissed Freedom Telecom Inc. and Net2Vu (Barbados) Inc.’s. application for an interlocutory injunction against Tele (Barbados) Inc., after she found “there is no serious issue to be tried”.
The ruling was based on a determination that the claimants had “provided no evidence that they are presently providing services in Barbados under the disputed trade name FLOW”.
“It is reasonable to conclude that the greater risk of injustice in granting the injunction lies with the defendant. Thus, the balance of justice in this case lies in favour of not granting the injunction,” Cornelius said in her written decision.
On May 14 Freedom and Net2Vu, which registered the trade name FLOW in a number of different combinations, filed a claim for an injunction and damages against Tele (Barbados) Inc., on the basis that Tele (Barbados) had infringed the claimants’ right to the trademark FLOW.
But with a full trial to determine the matter conclusively set to ensue, the claimants also applied for a provisional injunction “to prevent the defendants from using the trade name FLOW and its derivatives until the hearing of the substantive action”.
Freedom and Net2Vu had contended that Tele (Barbados) Inc. and its affiliate companies infringed its rights to the trade name FLOW by offering services in Barbados under the name or brand of FLOW or FLOW Barbados, and sought a number of orders restraining the defendant from infringing the claimant’s right to use the trade name FLOW, using the name in any form or in any business activity, or to apply for a trade mark of the name.
They also wanted orders that the name FLOW be removed from anything such as kiosks, vehicles, advertising stationery, promotional material and the like.
In making her decision, however, the judge said registration alone could not “ground their claim to an exclusive right to use the name”, noting that “except for a logo and a letterhead, there is absolutely no evidence that any telecommunications business, in fact any business at all, has been carried on under the name FLOW by the claimants, nothing betrays their presence in the marketplace nor any of the elements necessary to ground a claim under this head”.
“Further, there is no evidence of the injury to good will or reputation essential to such an action. Had there been, the court may have found that there was a serious issue to be tried,” Cornelius stated.
“On the other hand, it is not denied that the respondents have established a brand in the market, the evidence of the claimant is rife with examples. So it is worth emphasising that on the evidence presented by the respondent, and on the claim as pleaded it is difficult to see how there can be said to be a serious issue to be tried on this ground.”
She also said that the claimant “has shown no evidence of having done anything in the marketing terms of advertising, sales, in fact they do not show that they have even one customer trading as FLOW”.
“The defendant on the other hand, while they may continue trading if restrained from using the name, would have to dismantle their entire product line, registration forms, advertising campaign, all of which are branded with the name FLOW. I also note that the defendant has not, according to the evidence registered the name FLOW under the requisite Act, but that its parent company Columbus has applied for a trademark,” the jurist added.
Cornelius also said “there is an order for a speedy trial” on the substantive dispute between the parties. (SC)