Orvec International Ltd v Linfoots Ltd – Intellectual Property Enterprise Court
The Intellectual Property Enterprise Court has dismissed Orvec’s claims that Linfoots passed off its products.
The facts of the case are as follows. Orvec, a company that produces textiles such as pillow cases, tray mats and blankets for airlines, hired Linfoots, an advertising agency, to design its website and create promotional material. Linfoots, as part of an agreement, took photographs of Orvec’s products for use in its advertising material. Although the agreement contained an express term that Linfoots would retain the copyright in the photographs, there was an implied term that Orvec would have a licence to use these photographs.
When the parties parted ways, the photographs were used by Linfoots for Intex’s website, a Chinese trading company, which had previously supplied Orvec with products. Given that the photographs included Orvec’s logos and trade marks, Orvec claimed there was an implied term in the agreement that the licence granted to Orvec was exclusive and perpetual – i.e. the photographs could not be supplied to third parties without Orvec’s permission. Further, by supplying the photographs to Intex, Orvec asserted that Linfoots had provided Intex with the means to pass off its products as its own.
The IPE Court decided that as the case concerned photographs of products displaying Orvec’s logo and not the original logo or trade marks themselves, the agreement could not have implied exclusivity. Orvec’s trade marks were already protected, and original logos could be protected by copyright. Crucially, the Court applied the simple and minimalist approach when implying terms into a contract – i.e. going no further than was necessary.
Orvec also failed to establish the facts for its claim of passing off. Orvec alleged that its products had been passed off as Intex’s own products; however, the products which were evidenced in Court had in fact been made by Intex. The Court also ruled that there had been no misrepresentation by Intex that airlines such as British Airways were its direct customers.