Case No: IP-2025-MAN-000048

Case No: IP-2025-MAN-000048IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS IN MANCHESTERINTELLECTUAL PROPERTY ENTERPRISE COURT (IPEC)SMALL CLAIMS TRACKManchester Civil Justice Centre1 Bridge Street WestManchesterM60 9DJDate: 06/03/2026Before:DISTRICT JUDGE OBODAI- - - - - - - - - - - - - - - - - - - - -Between:Makeality Limited Claimant- and -(1) City Doggo Limitedand(2) Ms Laurencia Walker-FooksDefendantsMs Christy Rogers (direct access Counsel) for the ClaimantMr Faizul Azman (instructed by DAC Beachcroft LLP) for the DefendantsHearing dates: 11 December 2025APPROVED JUDGMENTBACKGROUND1. The Claimant is the registered proprietor of UK Trade Mark no. 3179581 for PIDDLEPATCH (the “Claimant’s Mark” or “Trade Mark”), which was filed on 10 August 2016and registered on 11 November 2016. The Claimant’s Mark is registered in respect of thefollowing goods:2i. “pet litter box tray containing real turf; litter boxes [trays] for pets” in class21; and “turf grass for use as pet litter and sold in biodegradable box tray”in class 31.2. In short, the Claimant sells real grass pet litter trays/dog toilets. It has marketed what it saysis an innovative product consisting of a patch of grass in a biodegradable box for toilettraining pets under the Trade Mark since September 2016 and claims to have generatedsubstantial goodwill in connection with it. The Claimant’s director Rebecca Sloan appearedon Dragons’ Den in January 2022 with a view to obtaining investment in the Claimant’sbusiness and cites that, amongst other things, as part of what has also generated goodwill.3. The first Defendant sells a competing real-grass patch under the Sign OUI OUI Patch, underthe dominant house brand CITY DOGGO. It is the Claimant’s case as pleaded, that the firstDefendant has advertised and offered for sale products under and by reference to signswhich infringe the Claimant’s rights.4. The second Defendant is the sole director and the only person with significant control ofthe first Defendant and has been since its incorporation. It is the Claimant’s case that assuch, the second Defendant is a joint tortfeasor for the reasons pleaded at paragraphs 6 to9 of the particulars of claim.THE PROCEDURAL BACKGROUND5. The claim was issued in the multi-track and was transferred to the small claims track(“SCT”) in a judgment handed down by HHJ Hacon on 3 October 2024 following anapplication to transfer the proceedings to the IPEC SCT made by the Defendants.6. The Claimant appealed to the Court of Appeal (“CA”) and, in a judgment dated 11 April2025, Arnold LJ, dismissed the appeal.7. The matter then came before me for trial on 11 December 2025.8. Prior to the trial the parties had filed an agreed list of issues. I found those to be very generaland unsatisfactory. In addition, Ms Rogers, confirmed to the Court at the start of the trialthat allegations about OUI OUI Patch, described in the particulars of claim as the InfringingMark, were no longer being pursued.9. The other difficulty encountered at the start of the trial was the attempt by the Claimant,through Ms Rogers’ skeleton argument and documents in the trial bundle, to introducematters/allegations that had not been pleaded as set out in paragraph 3 of Mr Azman’sclosing submissions. I agreed with his response as set out in paragraph 4 and my decisionis accurately recorded in paragraph 6 and 7 of his closing submissions. It was, therefore,important to clarify the issues that required my determination.10. At the start of the trial, I also ordered that the signs in issue would be those pleaded inand/or annexed to the Particulars of Claim namely:i. PIDDLE PATCHii. piddlepatchiii. Piddle Patch UK3iv. piddlepatchukv. Piddlepatchgrassvi. Piddle Patch Equivalent11. As a result, the scope of the trial was narrowed and the list of issues clarified as set out inparagraphs 8 and 9 of Mr Azman’s closing submissions which I have copied below for easeof reference.“As a consequence of that ruling, the scope of the trial was narrowed and clarified.The Court proceeded on the basis that:a. The claim is confined to the acts pleaded in the Particulars of Claim;b. Allegations relating to “Oui Oui Patch” are withdrawn;c. Unpleaded alleged acts, phrases, campaigns, advertisements, comparativematerial, and statutory routes are excluded and fall to be disregarded; andd. The Court’s task is to determine the pleaded claim only.On that footing, the issues remaining for determination were identified in substanceas:i. Whether the Defendants' historic uses of the words “Piddle Patch”,as pleaded and admitted, constitute actionable infringement undersection 10(1) of the Trade Marks Act 1994, or whether those usesare de minimis.ii. Whether any claim under section 10(3) of the Trade Marks Act 1994arises on the pleaded facts, in the circumstances where the use of“Oui Oui Patch” is withdrawn and unpleaded acts are excluded.iii. Whether the Claimant has established passing off on the pleadedcase.iv. Whether, if any primary liability is established, the SecondDefendant is jointly liable.”12. I also indicated that I would hear evidence on liability only.13. There is reference in Ms Rogers’ closing submissions to an amended particulars of claimbeing filed following agreement between the parties in October 2025, that allegations ofTrade Mark infringement and passing off relating to the Defendants’ use of the sign OUIOUI PATCH would not be pursued.14. Mr Azman said in his closing submissions that it was only on the 9th of January 2026 thatthe Claimant requested the Defendants to consent to amend the particulars of claim, andthat those amendments are not agreed.15. I do not recall any application being made seeking permission to amend and no suchpermission has been granted. As the Claimant no longer pursues the OUI OUI Patchallegations, I can and shall proceed on the Claimant’s case as pleaded, ignoring thosesections that relate to it.16. Written closing submissions were delivered, as I requested, by Counsel on 19 January2026. In her closing submissions, Ms Rogers said this:41. Infringement by keyword advertising was listed within theClaimant’s first draft List of Issues sent to the Defendants’ solicitoron 10 October 2025.2. Keyword advertising should be included in the scope of theseproceedings because it is fair to both parties and it is in the interestsof efficient administration of justice to avoid the need for furtherproceedings.17. Keyword advertising had not been pleaded or pursued at trial So, on 27 January 2026 Iasked the Administration to send a letter to Counsel to ask them to prepare a short responseto the other’s submissions. I did so primarily to allow Mr Azman an opportunity tocomment on the raising of keyword advertising by Ms Rogers. Additional submissionswere received on 5 February 2026.18. When this case came before HHJ Hacon because of the Defendants’ application to transferit to the IPEC SCT, he, as Mr Azman said, confined the issues to those pleaded acts, a point,he went on to say, was later emphasised by the Court of Appeal when describing the liveissues as turning on whether the historic uses pleaded were de minimis. The transcripts ofboth judgements were in the bundle.19. Ms Rogers submitted that Ms Sloan gave evidence on keyword advertising and that it wasraised in the Claimant’s first draft list of issues. That does not make it an issue before theCourt. Nor does Ms Rogers’ attempt to include it in her closing submissions. I made it veryclear at the start of the trial the scope of the issues before the Court, as identified above.20. Therefore, I do not intend to permit reliance on keyword advertising now as it would beprocedurally unfair and inconsistent with earlier rulings. It would be unfair to theDefendants who conducted the trial on the basis that only the pleaded acts were in issue.They should not have to deal with the unpleaded allegation post-trial. Had the Claimantwanted to rely on it, she had every opportunity to plead it and seek directions. I shall,therefore, do as Mr Azman invited me to and disregard paragraph 33 of Ms Sloan’s firstwitness statement and exhibit RS19 insofar as they seek to introduce keyword advertisinginto these proceedings.21. Finally, the submission by Ms Rogers that no objection was taken by the Defendants to theadmission of this evidence as part of the Claimant’s case under s10(1) (the inference beingthat they have acquiesced) ignores that fact that I had already determined the scope of theissues before evidence was given. As Mr Azman rightly says, no objection was thereforerequired.22. I now turn to consider and determine the issues set out in paragraph 11 above.Whether the Defendants’ historic uses of the words, “Piddle Patch”, as pleaded andadmitted, constitute actionable infringement under s10(1) of the Trade Marks Act1994, or whether those uses are de minimis.23. S10(1) of the Trade Marks Act 1994 (“the Act”) says this:A person infringes a registered trade mark if he uses in the courseof trade a sign which is identical with the trade mark in relation togoods or services which are identical with those for which it isregistered.524. In paragraph 8 of his skeleton argument Mr Azman, said that the Defendants admitted thefollowing historic uses:a. “Purchase of the domain names containing “piddle patch” via Shopify, whichredirected only if the exact URL was entered. These domains have been transferredto C.b. Use of “Piddle Patch Founder” and “Piddle Patch Equivalent Founder’ as alt textfor a single image, not visible to ordinary website users.c. Use of “Piddle Patch” in blogs seen by five unique visitors (likely C's legalrepresentatives).d. Use of “Piddle Patch” in website titles for search engine optimisation between 01December 2023 and 17 January 2024.e. Use of “Piddle Patch” in hashtags which ceased immediately upon C’s request.”25. The nub of the Defence is that the use of the sign was de minimis and is therefore, notactionable” in Trade Mark law. The test was set out in Combe International LLC v DrAugust Wolff GmbH & Co KG Arzneimettel [2022] EWCA 1562 (“Combe”) byArnold LJ. It is whether the use is on a scale which a reasonably vigilant Trade Markproprietor could be expected to oppose.26. In Merck KGaA v Merck Sharp & Dohme [2020] EWHC 1273 (Ch) (“Merck”) NorrisJ said that the Court should not only ask what percentage of the Defendant’s total output isinfringing, but also whether the infringements themselves can properly be described as“negligible” or “insignificant”, having regard to:a. The number of infringements;b. Their content and significance;c. Their likely individual and cumulative impact on the Trade Mark’s function; andd. Whether they are isolated or accidental incidents or instead exemplify a deliberatepolicy to promote the sign in the relevant market.27. Whilst Counsel accept that the cases of Combe and Merck set out the tests, Ms Rogerssubmitted that Mr Azman has ‘misinterpreted’ the tests. She said in her closingsubmissions that he appeared to seek to draw from it the introduction into Trade Marklaw of a requirement that the Claimant prove loss, when that had never been an elementof the cause of action in Trade Mark infringement.28. She went on to say:“It is not arguable (per paras 16 to 18 of the Defendants’ skeletonargument) that the infringements were de minimis because theClaimant’s turnover continued to increase. Trade markinfringement usually occurs in circumstances where the trade markproprietor is enjoying a successful and rising market. It is hard tosee how any of the landmark trade mark infringement casesdecided in recent decades could have succeeded if the claimant’sincreasing turnover had provided a bar to the claim.”29. In his response Mr Azman said that the Defendants did not contend that loss is an elementof Trade Mark infringement or rely on rising turnover as a bar to liability.30. He went on to say that:6“Merck requires the Court to assess whether the use itself, viewedrealistically in terms of scale, visibility, content, duration andcumulative impact on the trade mark’s function/market effect canproperly be described as negligible or insignificant [see Merck at88-89]. Evidence of continued growth and the absence of anydiscernible impact is relevant not because loss must be proved, butbecause it shows that the alleged uses did not impair the trademark’s origin function in a meaningful way. Merck requiresanalysis, not assumption or rhetoric. “31. I must agree with Ms Rogers that I too read Mr Azman’s submissions in the way she did.However, he has now clarified his position in his response.32. In his skeleton argument, Mr Azman said this:“Section 10(1) of the Act imposes strict liability for the use of anidentical sign for identical goods, although “use of a sign which istruly de minimis is not actionable” in trade mark law, and the test(“the acid test”) is whether the use is on a scale which a reasonablyvigilant trade mark proprietor could be expected to oppose (as perArnold LJ at §83 and §87 in Coombe [sic] International LLC v DrAugust Wolff GmbH & Co KG Arzneimettel [2022] EWCA 1562)”33. Combe was a case where the Claimants were, respectively the proprietor and a licensee ofthree United Kingdom Trade Mark registrations for the word VAGISIL in respect of femaleintimate healthcare products (“the Combe Trade Marks”). They contended that theDefendants had infringed the Combe Trade Marks by use of the sign VAGISAN in relationto identical goods. At first instance, Johnson J held that the Defendants’ use of both signsinfringed the Combe Trade Marks. He granted Combe relief, including an injunction andan order for delivery up, in respect of both signs.34. The injunction and order for delivery up were stayed pending the determination of theappeal by the Defendants, who appealed on three grounds. The first was that they contendedthat they had a defence to infringement under section 48(1) of the Act because Combeacquiesced to the use in the UK by the First Defendant (“Dr Wolff”) of a European UnionTrade Mark (“the Wolff EUTM”) owned by Dr Wolff. The other two grounds of appealwere that there was a defence to infringement under s11(1) of the Act and the Judge’sfinding that the uses of the sign gave rise to a likelihood of confusion was wrong.35. S48(1) of the Act provides, so far as relevant: “Where the proprietor of an earlier trademark … has acquiesced for a continuous period of five years in the use of a registered trademark in the United Kingdom, being aware of that use, there shall cease to be anyentitlement on the basis of that earlier trade mark … - (a) (b) to apply for a declarationthat the registration of the later trade mark is invalid, or to oppose the use of the later trademark in relation to the goods or services in relation to which it has been so used, unlessthe registration of the later trade mark was applied for in bad faith.”36. The CA, therefore, had to consider whether there had been acquiescence. At paragraph 37they said this:7In Budvar the Court of Justice held at [37] that “acquiescence”within the meaning of Article 9(1) of Directive 89/104 was a conceptof EU law which was to be given an Judgment Approved by the courtfor handing down. Combe v Wolff autonomous and uniforminterpretation. It went on to hold at [44] that “the characteristic ofa person who acquiesces is that he is passive and declines to takemeasures open to him to remedy a situation of which he is awareand which is not necessarily as he wishes … the concept of‘acquiescence’ implies that the person who acquiesces remainsinactive when faced with a situation which he would be in a positionto oppose.”37. That means that protection is limited to those cases in which the proprietor shows itself tobe sufficiently vigilant by opposing the use of signs by other operators likely to infringe itsMark.38. So, when Mr Azman referred to, “the acid test” which he took from paragraph 83 of thejudgment, what Arnold LJ said in that paragraph was this:“The acid test, it seems to me, is that there must be use for five yearswhich a vigilant trade mark proprietor could be expected to oppose.Secondly, as discussed below, it may be relevant to the question ofwhether the proprietor of the earlier trade mark is aware of the use.”39. Paragraph 87 in full says:“Thirdly, I cannot agree with the proposition that sales of 498 unitsof VAGISAN during the period from 7 September 2015 to 8 August2016 was de minimis at least when viewed from the perspective ofinfringement. There is very little authority as to the application ofthe de minimis doctrine to trade mark infringement, but as a matterof principle use of a sign which is truly de minimis is not actionable:see Merck KgaA v Merck Sharp & Dohme Corp [2017] EWCA Civ1834, [2018] ETMR 10 and cf. Napp Pharmaceutical Holdings td vDr Reddy’s Laboratories (UK) Ltd [2016] EWHC 1517, [2017]RPC 4. In the present case there has never been any suggestion byCombe that sales of 498 units would not be actionable. On thecontrary, the findings of infringement made by the judge includethose sales, and by virtue of the judge’s order Combe are entitled tofinancial relief in respect of them. This is certainly use on a scalewhich a vigilant trade mark proprietor could be expected tooppose.”40. That is what Combe, when put in its proper context, says. As Ms Rogers quite rightly saidin her closing submissions, “this was in the context of the issue of acquiescence.” In anyevent, there is no doubt, based on Ms Sloan’s evidence, that she did not acquiesce to theadmitted infringement. She complained within days of its commencement and couldtherefore, be described as a vigilant Trade Mark proprietor.41. Merck concerned a dispute between the parties about the use of the word “Merck” inconnection with their respective pharmaceutical businesses. They sought to regulate and8agree its usage in an Agreement dated 12 September 1955, a further Agreement in 1970and a 1975 Protocol. The parties implemented the 1970 Agreement and the 1975 Protocolin a generally co-operative way until 2009 when one of the parties merged with acompetitor to form one of the largest healthcare agencies in the world leading the otherparty to be increasingly concerned about the use of the word outside of the USA andCanada. Matters could not be resolved through correspondence and proceedings wereissued on 8 March 2013 for infringement of registered Trade Marks and breach of contract.42. In the judgment at first instance Norris J found that the first Defendant, as the contractingparty, had acted in breach of the contractual obligations contained in the 1970 Agreement(and the 1975 Protocol) by using the word “Merck” in the UK as a business name and as aTrade Mark in an impermissible way. He found too, that the Defendants had infringed eachof the registered Trade Marks.43. One of the grounds of appeal was that the Claimant only ever alleged breach of clause 7 ofthe 1970 Agreement and yet the Judge founded his decision on other clauses of theAgreement and held that it was entitled to injunctive relief as indicated in his judgment.The Appellants said that any activity which potentially constituted a breach of clause 7 oran infringement of Trade Mark was de minimis and not actionable and the Judge fell intoerror in failing so to find.44. One of the issues remitted to Norris J by the CA was whether any uses of the kind identifiedwere negligible or trivial and so fell to be regarded as de minimis.45. In paragraphs 27 to 35 of the Defence, the Defendants made admissions of the use of“Piddle Patch”, “Piddle Patch equivalent” and “piddlepatch” in domain names, socialmedia hashtags, metadata, source code, alt data, landing page titles, and blog posts, withrespect to goods for which the Trade Mark is registered.46. At paragraph 27, the Defence admitted that the first Defendant had purchased via theShopify platform the domains piddlepatch.info; and piddlepatch.shop. It did so just 3 daysafter Ms Sloan appeared on the BBC programme Dragons’ Den on 13 January 2022 whereshe successfully obtained investment from one of the Dragons.47. Contrary to Mr Azman’s closing submissions, the domain names were not dormant becausethe Defence admitted that the domains were configured to direct users, who typed in theURLs exactly, to the first Defendant’s Website. It was also pleaded that this redirection hasbeen terminated, and that the domain names were registered “as a naïve effort at searchengine optimisation with no intention knowingly to infringe the rights of any other party.”I shall say more about this later in this judgment.48. At paragraph 8 of his skeleton argument, Mr Azman referred to the admitted use as“historic”. That word must be treated with caution because the infringements complainedof began just over 2 years before proceedings were issued. Further, as pleaded in paragraph32.2 of the Defence, there were still 4 blog posts on the first Defendant’s Website as of 17January 2024 with references to the words “piddle patch”. The Defendants say that theybelieved and understood that those 4 blog posts were permitted comparative advertisingunder regulation 4 of the Business Protection from Misleading Marketing Regulations2008/1276 (the “Regulations”). However, upon receipt of a letter dated 27 March 2024from the Claimant’s solicitors, who took a contrary view to the Regulations, they wereremoved.949. I am satisfied by the evidence produced by Ms Sloan in support of her pleaded case in herfirst witness statement, that the infringement by the first Defendant was not historic or deminimis. As Ms Rogers said in her closing submissions, that evidence stands largelyunchallenged. The two witness statements provided by and on behalf of the Defendantswere primarily in support of the application to transfer this case to the SCT and dealt onlywith quantum.50. This is a convenient point in my judgment for me to say something about my impressionof the witnesses. I found Ms Sloan a credible witness albeit someone who did not always,on the first occasion, answer the question that had been put to her and in fact, I had causeto intervene to ensure that she did so. That did not detract from her credibility. Her desireto tell the Court everything was indicative, in my opinion of someone who had built abusiness from scratch and was doing all she could to protect it and its goodwill.51. I gained a different impression of Ms Walker-Fooks. She confirmed the contents of theDefence which she had signed with a statement of truth. Her curriculum vitae is impressive.She was taken to her LinkedIn profile in the bundle. She studied Information Managementfor Business at University College London. She is currently the Chief Operating Officerfor Anahata Capital Management LLC, a hedge fund and has been since October 2025.Prior to that, from May 2022 to September 2025 she was Vice President of MacroLighthouse Investment Partners LLC, a financial services company.52. In evidence she described the first Defendant Company as a sideline of hers. When she wasasked whether she had transferred her business skills to the first Defendant Company, shereplied, “unfortunately not”. I did not believe her. When I listened to her give evidence, Igained the distinct impression that she was seeking to persuade the Court, that she wasnaïve in relation to matters of business and intellectual property. I was not persuaded byher portrayal. In my opinion, she knew exactly what she was doing when she started thefirst Defendant Company and started what Ms Rogers described as, “a campaign ofinfringement beginning in May 2022.”53. I take as an example, the insertion of the Trade Mark into landing page titles for the firstDefendant’s Website admitted at paragraph 33.1 of the Defence. She said that she hadcreated the landing page titles herself and inserted them herself personally using the facilityof the website host Shopify. In the Defence, that she had signed with a statement of truth,she stated that to the best of the Defendants’ knowledge and belief the use began on 01December 2023. Ms Rogers asked her what checks she had done to confirm her knowledgeand belief, whether she had checked any records or interrogated her systems? She repliedthat she had made no checks and had no records available.54. However, Ms Walker-Fooks was unable to gainsay the Claimant’s evidence in the bundlethat she had inserted the Trade Mark into the page titles in August 2023. I agree with MsRogers that the date in the Defence had been used because she knew that Ms Sloan hadonly discovered the infringement in December 2023. I did not accept her evidence that hermemory was not infallible or that she did not remember, which I found disingenuous notleast because she had signed a statement of truth on the Defence 4 months later. What MsWalker-Fooks had not factored into her actions was Ms Sloan’s tenacity in leaving no stoneunturned to prove infringement.55. I, therefore, agree with Ms Rogers’ submission that absent any records or any checks madeby Ms Walker-Fooks, all she had tried to do in the Defence and in giving evidence was tominimise the extent of the infringement, to support the de minimis defence.1056. I am satisfied from Ms Sloan’s evidence, and I prefer her evidence to that of Ms WalkerFooks, that the number of infringements, their content and significance and the likelyindividual and cumulative impact on the Trade Marks’ function means that theinfringements themselves cannot properly be described as negligible or insignificant. I alsofind that they were not isolated or accidental incidents but were a deliberate policy topromote the sign in the relevant market.57. By way of example, and as a reason for my findings, I return to the purchase of the domainnames via the Shopify platform and the reason set out in the Defence that it was, “a naïveeffort at search engine optimisation with no intention knowingly to infringe the rights ofany other party.”58. It was not naïve, it was deliberate. Ms Walker-Fooks’ answers in cross examination to thequestion of Search Engine Optimisation (“SEO”) were telling. She was asked why she usedthe Claimant’s Mark on the first Defendant’s Website, and she said it was for SEO, whichmeant attracting the business of customers who searched for the Claimant’s Mark. She wasthen asked why she had not changed it to her own product name when she was challengedby the Claimant. She did not have an answer and in the end agreed with Ms Rogers that itwas because she would lose business because the use of the Trade Mark was bringingcustomers to her website.59. Then there is the complaint that was made to Shopify by the Claimant. In response, MsWalker-Fooks made a false statement to them on 23 January 2024, something she admittedin cross examination, to have her comparison blogs re-instated. She declared at the end ofher response to the complaint, “I swear under penalty of perjury that I am the trademarkor trade dress owner or am authorised to act on behalf of the owner of an exclusive rightthat is allegedly infringed”.60. She agreed in cross examination that her declaration on her response meant that she claimedto be the owner of the Trade Mark. She went on to say that she had simply ticked a box.That is no mitigation to the offence of making a false declaration. Again, when crossexamined, she had to agree that in so doing she succeeded in achieving her aims bypersuading Shopify to reinstate the infringing material on the first Defendant’s Website.61. The Defence at paragraph 33.1 admits that the Defendants used the words “piddle patch”in titles for pages on the first Defendant’s Website for the purposes of SEO. They said thatthey did not intend that this text would be visible to visitors of the Website and did notunderstand that this text was visible to them and did not intend to use this text for thepurpose of advertising the Oui Oui Product.62. Ms Rogers referred to the decision of Pumfrey J in Reed Executive plc & Anr v ReedBusiness Information Ltd [2002] EWHC 1015 (Ch) where he recognised that use of asign identical to a Trade Mark in a metatag which is invisible to the internet user is capableof constituting infringement:“The sign in a metatag is being used to suggest that this site is to betreated in a manner appropriate to the way in which the trade markowner's site should be treated. This, it seems to me, is infringement”.63. Ms Rogers also made the point that, in cross examination, Ms Walker-Fooks was askedwhy she inserted the Trade Mark into website code which might be invisible to the generalinternet user. She replied that she had done so for SEO and agreed with Ms Rogers thatthis meant improving the first Defendant’s website rankings for searches for the Claimant’sMark.1164. My finding is that her doing so was part of a deliberate policy to promote the sign in themarket for the relevant goods. It had the desired effect because, as the Claimant pleaded,the result was that the first Defendant’s Website was ranked alongside the Claimant’s whenconsumers searched for PIDDLE PATCH. It follows that I accept Ms Rogers’ submissionson this and reject Mr Azman’s.65. There was also the use of “Piddle Patch” and variants in alt-data on the first Defendant’sWebsite from August 2023 to January 2024 as pleaded and which Ms Sloan attached asexhibit 27 to her witness statement showing the Alt-Text, “Piddle Patch Founder with herdogs” labelling an image of Ms Walker-Fooks on the first Defendant’s Website.66. The Defendants admit the use but go on to say in the Defence that the text would not bevisible to a user in normal circumstances. Ms Sloane described, during her evidence, thatshe was able to get the text to display by hovering her mouse over Ms Walker-Fooks’image. She said she could also see it if the image did not load and, the text could be readout to visually impaired users as a description of the image.67. Ms Walker-Fooks was asked by Ms Rogers why she had added the alt-text describingherself as the “Piddle Patch Founder” when she was not. She replied, “because I didn’tthink anyone would see it”. On being questioned further, she admitted that it was for SEOand then agreed that this was to optimise the first Defendant’s Website for searches for theClaimant’s Mark.68. I find that all of this was a deliberate attempt by the Defendants to benefit commerciallyfrom the use of the Trade Mark. It was deliberate because of the history between Ms Sloanand Ms Walker-Fooks and the failed attempt to buy Ms Sloan’s business because she [MsSloan] changed her mind. Ms Walker-Fooks, therefore, knew exactly what she was doingand why.69. This also applies to the admitted use of, “Piddle Patch Equivalent” by the Defendants. MsWalker-Fooks was asked why she used that and not “Oui Oui Patch”, her own productname and admitted that it was because she would lose business because using the TradeMark was bringing in website traffic.70. In his response to Ms Rogers closing submissions Mr Azman said that “the Claimantassumes cumulative impact without analysing whether the uses were capable of anymeaningful consumer-facing effect.” He invited the Court to focus on the substance andnot the Claimant’s characterisation or rhetoric. I disagree with his submissions and withhis further submissions, “that acts that are individually incapable of being significant donot become significant merely by being grouped together.”. I agree with Ms Rogers thateach of the infringements is actionable on its own and cumulatively.71. There is substance in what the Claimant says, and that is to be considered alongside theDefendants’ admissions and what Ms Walker-Fooks also admitted in giving her oralevidence. I also take into account that her campaign of infringement began in May 2022when she knew that the Trade Mark was registered but decided, nevertheless, to use anidentical sign for her identical goods.72. The admitted use of the Trade Mark in social media hashtags was detected very quicklyby the Claimant and deleted by the Defendants when she complained. That use alone bythe Defendants was capable of being significant.73. Ms Walker-Fooks used the alt-text “Piddle Patch Founder with her dogs” over her imageand then added the word “Equivalent” when challenged to benefit, as she said, from highsearch engine rankings. She succeeded.74. The Defendants clearly and deliberately intended to use Piddle Patch (and its variations)to promote their product because of the goodwill associated with the Trade Mark.1275. Ms Walker-Fooks’ deliberate false Shopify declaration resulted in blogs being re-instated,2 of which, on Ms Sloan’s case made comments which denigrated the Claimant’sproduct. The defence that the Defendants believed this to be permitted comparativeadvertising under regulation 4 of the Regulations does not assist them because, as MsRogers submitted, the Defendants do not say that the blogs were permitted comparativeadvertising. In my opinion, the second Defendant knew they were not. I am fortified inthat view by her actions in making a false declaration to Shopify to get the blogs reinstated.76. Mr Azman submitted in his closing arguments at paragraph 42 as an overall assessment ofthe claim that:“ When assessed individually and cumulatively, the pleaded usesare limited in number, short in duration, peripheral or invisible inordinary use, and unsupported by evidence of any practical impact.Each required exceptional scrutiny to identify, rather thanpresenting as material marketplace conduct. Further, the evidenceshows that the uses ceased once complaint was made”77. Uses did not cease once complaints were made. Paragraph 31.2 of the Defence admittedthat:“The Defendants confirm and aver that the text “Piddle PatchFounder” was changed after receipt of the LBA. This text was onthe D1 Website from 26/08/2023 until receipt of the LBA on22/12/2023, when the word ‘Equivalent’ was added. On17/01/2024 (before issue of this claim) this alt text was removedaltogether…”78. Then we have the blogs which were re-instated. The Defendants admit that they were notremoved until less than a week before the Defence was filed and served. I agree with MsRogers’ submission that this was done by the Defendants with the intention of,“maximising the commercial benefit to the Defendants by diverting as many of theClaimant’s customers as possible, before being able to say in the Defence that theinfringement had ceased (to the “best of the Defendants’ knowledge and belief”)”.79. In answer therefore, to the first issue, whether the Defendants' historic uses of the words“Piddle Patch”, as pleaded and admitted, constitute actionable infringement under section10(1) of the Trade Marks Act 1994, or whether those uses are de minimis, the answer, basedon my judgment is that they do constitute actionable infringement. I find that everythingMs Walker-Fooks did was done deliberately and each individual infringement was use ona scale which a reasonably vigilant Trade Mark proprietor could be expected to oppose –as Ms Sloan did. They also had a cumulative effect on the Trade Mark’s function.80. I turn now to the second issue.Whether any claim under section 10(3) of the Trade Marks Act 1994 arises on thepleaded facts, in the circumstances where the use of “Oui Oui Patch” is withdrawnand unpleaded acts are excluded.81. My decision on this can be brief given the length of this judgment thus far and that is, basedon my findings above, leaving aside any reference to keyword advertising, I agree entirelywith Ms Rogers’ closing submissions in relation to this issue. The s10(3) claim is engaged.I turn now to the third issue.13Whether the Claimant has established passing off on the pleaded case.82. The Claimant’s goodwill is dealt with and pleaded from paragraph 17 to 24 of theParticulars of Claim and in her closing submissions, Ms Rogers, sets out all the pleadedactivities of the Defendants which are said to constitute passing off. I have considered themand I am satisfied and agree with her that each constituted a misrepresentation to the publicthat the Defendants’ product was that of the Claimant or was otherwise associatedcommercially with the Claimant. Further, I find, based on the answers Ms Walker-Fooksgave during cross examination, that passing off is exactly what she intended when shebegan her campaign of infringement.Whether if any primary liability is established the second Defendant is jointly liable.83. The Defence admits that the second Defendant is the controlling mind behind the firstDefendant and has responsibility and control for the day-to-day management of its affairs.Based on my judgement, the Claimant has established a primary tort by the first Defendantand therefore, the Second Defendant is jointly liable.Consequentials84. The Claimant’s claim on liability has succeeded. There remains the issue of quantum. Theparties are required to liaise and indicate how they wish to deal with this issue so thatdirections can be given at the handing down of this judgment on liability.DJ Obodai06 March 2026