No fowl play here – Morley’s trade marks upheld on appeal

In Morley’s (Fast Foods) Ltd v Nanthakumar & Others [2025] EWCA Civ 186, the Court of Appeal upheld a string of findings by HHJ Melissa Clarke in favour of the South London fried chicken favourite, Morley’s. This appeal covered trade mark infringement, breach of a settlement agreement, and the ability to franchise under the agreement.

As many readers will remember, the first instance decision ([2024] EWHC 1369 (IPEC)) was already a juicy one which we covered in a previous blog post: "A chicken shop dispute brings good news in the fight against lookalike brands." The appeal judges were not persuaded to ruffle any feathers and affirmed the lower court’s findings.

Background to the Morley's marks

Morley’s has been serving fried chicken since 1985 and operates over 100 outlets on a franchise model using, amongst others, the following sign.

KK (the seventh defendant) began operating lookalike outlets under the name "Metro’s", also using a franchise model. This led to claims of trade mark infringement and breach of a 2018 agreement between the parties.

At first instance, HHJ Clarke found that multiple signs used by the defendants were too close for comfort — particularly in light of Morley’s distinctively red and white branding, and its “Triple M” mark. Sign 1 (used on Metro’s fascias - see below) and Signs 2 and 3 (MMM and Triple M) were all found to be infringing.

Additionally, KK was held to have breached the 2018 agreement by using modified signage not permitted under the settlement.

The appeal

The defendants appealed on eight grounds, with arguments ranging from errors in identifying the “average consumer” to misinterpretation of the 2018 agreement. But the appeal court wasn’t buying it, not even with a side of chips.

The key takeaways from the appeal include:

• Average consumer: The trial judge was slightly overzealous in defining two separate consumer classes (including a group of “intoxicated revellers”), but the Court of Appeal found this ultimately immaterial. The core finding — that the average consumer would exercise a medium to low level of attention — stood firm.

• Similarity of the signs: The red and white stylisation, large italicised “M”, and similar straplines all contributed to a likelihood of confusion. The fact that the brand names themselves (Metro’s vs Morley’s) were different did not outweigh the overall similarity.

• Context matters: Although there was some debate about how much the “context of use” (e.g. lit-up fascias at night, store interiors visible from the street) could or should contribute to the confusion analysis, the appeal court was satisfied that the trial judge had applied the right approach.

• 2018 Agreement: Perhaps the meatiest part of the judgment. KK argued that the agreement permitted him (and by extension, his franchisees) to use slightly modified signs. The court disagreed. Not only did the modifications go beyond what was “reasonable”, but the agreement did not give KK the right to sub-license use of the Metro’s signs to third parties. That left the franchisees out in the cold, or perhaps, out of the coop.

  
  

What does this mean?

This decision serves up some piping-hot reminders for brand owners and franchise operators:

• Be specific in settlement agreements: If you're allowing continued use of branding by way of settlement, be crystal clear about what can and can't be modified and whether any third parties can piggyback on those rights.

• Signs aren’t judged in isolation: Visual, aural, and conceptual similarities, especially when combined with real-world context, all play a role in the likelihood of confusion. A stylised “M” and a bit of red might be all it takes to land you in hot oil.

• Franchise responsibly: Simply calling yourself a franchise doesn’t mean you’re immune to trade mark law. Franchisors and franchisees alike need to check whether their use of branding is actually permitted.

The appeal judges have closed the lid on this chicken box. It’s a clear win for Morley’s, whose branding continues to rule the roost.

To find out more about the issues raised in this blog contact Rosie Burbidge.