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The cacti shop and the tattoo parlour (yes, really)

Sometimes being sent a court judgment can prove to be a welcome distraction from decision writing and that is certainly the case with HHJ Melissa Clarke’s judgment in Martinez (t/a Prick) and another v Prick Me Baby One More Time Ltd (t/a Prick) and another.

If you haven’t seen this one (and why would you, it is a decision from the Intellectual Property Enterprise Court), it is worth a read and I guarantee it will make you chuckle. It certainly made me chuckle (and the boys when I told them about it when I got home, although the names alone may have been enough to do that!).

Martinez v Prick Me Baby One More Time Ltd

The parties’ dispute was all about the name of a tattoo parlour and a cactus shop, and whether the use of the same name (“Prick”) amounted to passing off by the cactus shop. It seems the tattoo parlour had been in Shoreditch for about 18 years, whereas the cactus shop in Dalston was a relative newcomer, having only started trading in July 2016. In addition, according to the judgment, the shop’s owner (who goes by the professional name of Henry Hate) is something of a celebrity in the tattooing world, with a list of high profile clients, including Boy George, Pete Doherty and Amy Winehouse, having inked the full-length pin-up girl “Cynthia” on her right arm.

Ultimately, the court held that customers would not be confused. One witness for the defendant said that no-one had ever come into the cactus shop and asked them if they were connected to the tattoo parlour, nor had any one said to the tattoo parlour staff that they had “bought a cactus at your new cactus shop” or even, “I see you have opened a new cactus shop”.

The court also referred to the “extreme dissimilarity” between the two fields of activity and “get up” of the two businesses. It noted that they might both rely on the pun and humour inherent in the name, but members of the public would:

“… come very quickly to an appreciation that the name refers to the specific properties of Cacti or Tattooing, as the case may be, appreciate the humour, and so not go on to assume that there must be a connection.”

I certainly appreciate the humour and might have to check out the cactus shop for myself as it’s not too far from the office, although not as close as the tattoo parlour, but I’m more likely to buy a succulent than be inked!

But seriously, witness evidence is something I regularly touch upon on this blog. I refer to this case as it provides some great examples of a court having to make assessments of the witness evidence when those witnesses are friends of, or have an association with, one of the parties.

Witness evidence

Here, two of the tattoo parlour’s witnesses were long-standing customers. One witness (Mr Rose) seemed to have had a rather torrid time in the box, being a nervous witness who struggled to “listen to, and answer, just the questions asked”. This led to “long, over-explanatory answers to even simple questions” and to the witness giving a “hopelessly confused, contradictory and… incredible story”. It’s perhaps no surprise that the court did not rely on his witness evidence.

The other (Mr Bates) fared much better, although the court noted that he:

“… came to court to tell the truth as he understood it, but in the course of his cross-examination he seemed to change his evidence somewhat from the account he gave in his witness statement and in my judgment he did so in order to present a stronger case to support Mr Martinez.”

That said, the court still found him to be a credible and reliable witness, although some of his oral evidence was treated with “considerable caution”.

Another witness (Ms Higgins) was a long-standing friend, but was caught up in travel delays and didn’t make it to court. Instead, her witness statement was admitted as hearsay and the court approached it with a degree of caution because her credibility and reliability as a witness could not be tested. The court seemed particularly concerned with the friendship and the possibility that the witness “may have a motive for misrepresenting her evidence”, even though there was no evidence that this was the case.

I should also mention the chap who represented Mr Martinez in his “artistic endeavours” and sold his artwork (Mr Saunders). The court allowed him to give opinion evidence, even though there was no permission for an expert, it seems because the defendant did not object. I thought that was rather unusual but it seems the court found assistance in his evidence and thought he was a “straightforward, credible and reliable witness”.

Mr Martinez was considered a good witness, who “made appropriate concessions when necessary” and “gave honest evidence to the best of his recollection”. Ms Leon (the defendant) was also considered “credible and reliable”.

Just pausing there, I think just looking at how the judge weighed up the evidence of the various witnesses demonstrates the importance of testing the evidence and seeing witnesses for yourself. This was amply demonstrated in the caution shown to Ms Higgins’ evidence and the degree of latitude given to Mr Saunders’ evidence. So often the disputes I deal with are dealt with on paper, without a hearing of any kind, and so I can fully understand the caution that is necessary when approaching any witness evidence that has been filed by the parties.

Finally, I had to smile at one bit of Ms Leon’s cross-examination. She was explaining that she picked the name for her shop because it is:

“… both a cheeky and slightly vulgar word and also descriptive of what cacti can do to you if you handle them.”

Quite!

MCMS Ltd Matt Molloy

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