The Hermès case that is in the news at the moment concens the exclusive sales practices used by Hermès. However another Hermès case has flown a bit more under the radar.
The English High Court has allowed a claim to proceed in a case concerning a Hermès Birkin bag, finding that it was not an attempt to litigate issues raised in a previous claim.
The case is between Maia Luxury Limited, a reseller of authentic Hermès bags and accessories, and Luxierge Limited/ Paresh Jitendrakumar Thanky, respectively its supplier and agent.
The dispute relates to the payment of £170,000 for a 25cm Birkin bag with diamonds, which was never received, and which was used and damaged. Maia brought proceedings for breach of a supplier agreement and/or order; breach of the Sale of Goods Act 1979; misrepresentation, unjust enrichment and mistake as to identity. It is seeking at least £220,000.
Two claims one Birkin bag
The first claim was issued on 28 January 2022 and led to a default judgment on 25 July 2022. However, after it emerged that there was no evidence the proceedings had ever been served, the judgment was set aside and the claimant paid the defendants £15,000 pursuant to a cross-undertaking in damages.
The second claim was issued on 12 January 2023 and is in substance identical to the first claim. The defendants argued that it should be struck out for abuse of process following the rule in Henderson that precludes a party from raising in subsequent proceedings matters which were not but could and should have been raised in earlier ones.
The judge, Deputy Master Skinner KC rejected that argument, saying that there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party:
“Here, the Defendants did not even become aware of the first claim until Mr Thanky's bank account was frozen pursuant to the freezing order. The Defendants' costs of the first proceedings have been paid by the Claimant and they have also been paid damages pursuant to the cross-undertaking. No defence was ever served and accordingly there is no procedural bar to the issue of new proceedings. Notable for its absence from the settlement of the first proceedings agreed between the parties is any reference to the terms agreed relating to any future proceedings in respect of the same subject matter.”
He therefore concluded that the defendants’ case “falls a very considerable way short” of satisfying him that the proceedings were abusive. Moreover, the claimant had a real prospect of success and was likely to establish dishonesty.
What does this mean?
While this is not an IP case, it highlights a problem that often arises in piracy and counterfeiting matters, where it is difficult to establish the identity of the defendant in order to serve proceedings. In this case, the only contact between the parties had been by WhatsApp and there was an issue over the correct name of the individual defendant. Moreover, proceedings had been served to the wrong address, due to a mistake in the post code.
It is therefore reassuring that the settlement of the first claim following the mix-up did not stop the claimant making effectively the same claim using the correct information. While a lot of time and trouble would have been saved if the details had been correct in the first place, the Court has taken a practical approach in allowing the second claim to proceed.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com
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