Dispute over ownership of dating apps. The Courts considered the law of partnership and determined that the pursuers had failed to establish that a partnership had been formed for the development and exploitation of the apps. Decision here.
Ampersand’s Usman Tariq acted for the successful respondent in the case of CCHG Limited t/a Vaporized v Vapouriz Limited. This case was an appeal to the Court of Session against the decision of the UK Intellectual Property Office’s Hearing Officer under section 76 of the Trade Marks Act 1994. The case is understood to be the first time that the Scottish Court has heard an appeal of this nature.
The appeal was brought by CCHG Limited following the invalidation of its registered trade mark for the device incorporating the stylised words “VAPORIZED INHALE THE FREEDOM”. The competing trade marks in this appeal were widely used in the branding of two leading retailers of e-cigarettes in the UK.
The appeal addresses several important points of principle for IP practitioners including the character of the appeal to the Court of Session as well as providing useful guidance on the legal principles applicable to the assessment of competing trade marks. The preliminary issues in the appeal arose partly because the procedural rules in England and Wales stated that an appeal to the Court was a “review” of the Hearing Officer’s decision whereas Court of Session rule 55.19(1) stated that an appeal to the Court of Session was a “rehearing” of the case.
The appeal took place in the Court of Session over two days in front of Lady Wolffe with submissions focusing on the important preliminary issues as well as the substantive merits of the appellant’s grounds of challenge to the Hearing Officer’s decision. The Court found in favour of the respondent on all of the issues in dispute.
The Court held that it should approach the review of the Hearing Officer’s decision with an appropriate degree of circumspection (paragraph 95); it was important that the Court’s approach should accord with that in England given that the Trade Marks Act 1994 is of UK-wide application; the difference between a “review” and “rehearing” was semantic in the circumstances of this appeal (paragraph 96); and that a challenge to the Hearing Officer’s decision in a multi-factorial assessment under section 5(2) of the Trade Marks Act 1994 could only succeed where there was a distinct error of principle or where the decision was plainly wrong (paragraphs 97 – 99).
Having addressed these important points of principle, the Court considered the merits of the appellant’s challenges to the Hearing Officer’s decision on the characteristics of the average consumer and the purchasing process of e-cigarettes; the comparison of the trade marks; and the likelihood of confusion. Each of these grounds of challenge failed.
The full Judgment can be read here. Usman Tariq represented the Respondent and Applicant and was instructed by Burness Paull LLP.
Usman Tariq KC has extensive experience of high-value and complex commercial disputes and public law litigation. His core areas of practice include contractual, intellectual property, insolvency, banking, company and professional negligence disputes. He also specialises in administrative and public law, including judicial reviews. He has appeared at all levels of the Scottish court system, including the UK Supreme Court.
He was recognised as Advocate of the Year at the Law Awards of Scotland 2017 and the Legal 500’s Junior Counsel of the Year at the Scottish Bar at the Legal 500 UK Awards 2019. He is ranked as a leading individual in the Chambers & Partners UK Bar Guide 2024 in seven practice areas which is the joint highest number of individual rankings for the Scottish Bar.
He has held a number of professional appointments. He is appointed as junior counsel to the UK Covid-19 Public Inquiry chaired by Baroness Heather Hallett. He is a member of the legal team investigating core political and administrative governance and decision-making in relation to the pandemic in Scotland. He was involved in high-profile public hearings in January 2024 in which key individuals involved in the pandemic response in Scotland gave evidence. He was also a Standing Junior counsel to the UK Government in Scotland and in April 2024, took on the role of Second Standing Junior to the Advocate General for Scotland. He has served as a full-time Advocate Depute at the Crown Office between 2021 and 2022.
He has been described in the Chambers & Partners UK Bar Guide as being “universally respected at the Bar, including by opponents and the judiciary” and a “very highly regarded practitioner” who has “the ear of the court”. The breadth of his expertise is recognised in his rankings in the legal directories. He is ranked in the Chambers & Partners UK Bar Guide 2024 for the following seven practice areas: (i) commercial dispute resolution; (ii) intellectual property; (iii) information technology; (iv) restructuring / insolvency; (v) professional negligence; (vi) administrative and public law; and (vii) civil liberties and human rights. He is also ranked in the Legal 500’s UK Bar Guide 2024 for commercial disputes and administrative and public law.
He acts in cases across the commercial spectrum. He is ranked in Band 1 in the Chambers & Partners UK Bar Guide and Tier 1 in the Legal 500 UK Bar Guide for commercial disputes. He is described in the Chambers & Partners Bar Guide 2024 as “an absolute standout advocate, a superb all-rounder who is great with clients” and whose “legal analysis is outstanding”. His expertise in professional negligence claims is recognised by Chambers & Partners who note that he has a “reputation for his handling of professional negligence claims, primarily against firms of solicitors”. He also undertakes a significant amount of work in the field of personal and corporate insolvency. Chambers & Partners note that “he is regularly instructed to act for administrators, liquidators and trustees, among other parties, in complex corporate and personal insolvency cases”.
He has developed a market-leading reputation for intellectual property disputes. He has been described by the Legal 500 as “The best all-round IP junior in Scotland”. Chambers & Partners has noted that he is “now regarded as the leading all-round IP junior in Scotland” and that he “continues to impress with his unrivalled knowledge of all issues of IP as well as his excellent manner with clients”. In addition to appearing in most of the leading IP cases in the Court of Session over the past decade, he has experience of conducting proceedings in the UK Intellectual Property Office. He also has a leading reputation for Information Technology disputes. He is the only junior counsel in Scotland recognised by Chambers & Partners for expertise in this practice area. Chambers & Partners note that he “garners critical acclaim in the market for his abilities in a host of cases including those involving the IP rights in games, television and related merchandise”. He has acted in high-profile cases in the gaming industry, including for Sony Interactive Entertainment and Naughty Dog in relation to the hack of servers and leak of footage from the “Last of Us Part II” video game before its release, and Rockstar Games in relation to modding of the software of the “Grand Theft Auto V” video game.
He has significant expertise in administrative and public law as well as civil liberties and human rights. He is ranked in both the Chambers & Partners and Legal 500 UK Bar directories for administrative and public law. In his role as a Standing Junior counsel to the UK Government in Scotland, he has advised and represented a number of UK government departments including the Cabinet Office, Home Office, Department of Work and Pensions, Department of Energy Security and Net Zero and the Ministry of Defence. He is described by Chambers & Partners as having a “busy public and administrative law practice, in which he acts mostly for central government”. He is also described as a “well-regarded civil liberties and human rights advocate” who is “particularly adept at judicial reviews concerning EU, human rights and immigration law”. He has significant experience of EU law, including having advised on the applicability of the sanctions regime to companies.
He has experience of alternative dispute resolution as counsel in mediations and arbitrations. He has been appointed as the arbitrator in commercial disputes. He also sits as a legal member of the Scottish Football Association’s Judicial Panel.
He is an alumnus of the U.S. Department of State’s International Visitors Leadership Program (IVLP). The IVLP is the U.S. Department of State’s premier professional exchange programme in which emerging foreign leaders in a variety of fields are invited to the U.S. to meet with professional counterparts and cultivate lasting relationships. In 2022, he spent time in Washington D.C., San Francisco, Portland and Montana meeting with various federal and state governmental bodies, NGOs and stakeholders in a human rights project on Advancing Minority Rights in Europe.
He is a member of the Royal Society of Edinburgh’s Young Academy of Scotland (YAS). YAS aims to bring together young professionals from all sectors to work together on projects that benefit Scotland and the world.
He is passionate about improving inclusion in the legal profession in Scotland. In 2017, he co-founded the Scottish Ethnic Minority Lawyers Association (SEMLA). SEMLA aims to improve ethnic diversity in the legal profession in Scotland. The group is supported by the Law Society of Scotland and the Faculty of Advocates. SEMLA has collaborated with some of the largest law firms and organisations across the UK on events and work placements for law students from ethnic minority backgrounds. In 2021, he was appointed to the Law Society of Scotland’s Racial Inclusion Group which undertook a systematic review of racial inclusion in the profession and produced a report with recommendations. In 2023, he was appointed to the Scottish Government’s Future of the Legal Profession short-life working group. The purpose of this group is to examine the evidence and propose improvements to address the challenges of recruitment and retention in the profession and to provide support for the planning, collaboration and improvement of legal services in Scotland.
He called to the Bar as the Faculty’s Lord Reid scholar for 2010/2011. This scholarship is awarded annually to the outstanding candidate to the Bar. He is a graduate of the University of Glasgow and the University of Cambridge.
Robert Howie KC was admitted as an advocate in 1986. He took silk in 2000. He has been involved in a large number of adjudications as Counsel, legal adviser or adjudicator. He has also acted as the Court’s reporter in several petition cases including Earl of Balfour, Petitioner 2003 SC (HL) 1 and Chisholm, Petitioner 2006 SLT 394. He regularly appears in the Inner and Outer Houses of the Court of Session. He has appeared in the Sheriff Court, the Lands Tribunal and in several Arbitrations. Robert Howie has also led in the House of Lords and the UK Supreme Court.
Robert Howie KC is ranked in the current edition of Chambers and Partners under 4 areas of practice. In Construction Law he is described as “A really great lawyer who is deserving of his great reputation and an opponent to be reckoned with… He is very good at marshalling and dealing with legal arguments.” He is also ranked in Chambers and Partners for Insolvency described as being “very commercially and tactically minded… His advice is always first-class, clear, well thought out and supported by detailed knowledge of case law.” Under Commercial Dispute Resolution “His thoroughness and knowledge are second to none… He is one of the cleverest advocates at the Scottish Bar. He’s near the top of the pile in terms of quality commercial work.” And under Professional Negligence “He has an amazing ability to come up with a left-field argument… He is very bright, very able and an inventive thinker.”
Sheena joined Ampersand in 2015. Prior to joining us, Sheena worked at a top Edinburgh Law firm, initially as a trainee then as a Solicitor in their Employment Department. Sheena holds a LL.B and Legal Practice Diploma from the University of Edinburgh.
Sheena’s legal experience provides her with ideal insight to assist with all inquires in relation to instructing counsel. Sheena brings a friendly and professional service to the Clerking team and is always ready to assist.
Shawn McArthur joined Ampersand in 2018. Prior to joining Ampersand Shawn was a Legal Secretary at a global law firm, based in Edinburgh, working Dispute Resolution and prior to that worked in Property and Insolvency teams.
Shawn brings a friendly outlook and efficient work ethic to the team.
