Shall proceed to registration... at some point
In that decision, the High Court upheld the Hearing Officer's decision that SKE had failed to substantiate its earlier rights, and ordered that BBL's CRYSTAL BAR mark "shall proceed to registration". There was no stay ordered on that registration, save that it stated that any appeal must be made by a certain date.
The UK IPO then wrote to the parties to ask what had happened to the appeal to the High Court. BBL's lawyers, Brandsmiths, provided a copy of the court's order the following day, asking that the mark to proceed to registration.
SKE's lawyers, Stobbs IP, then wrote to the UK IPO, referring to the deadline to appeal, and requesting that the Register not be updated pending that application. Brandsmiths replied to say that the order had not provided for a stay of the registration, and repeated the request that the mark proceed to registration. This argument went on, with Brandsmiths expressing a concern that Stobbs IP was "attempting to mislead the Tribunal and interfere with the due administration of justice".
SKE sought a variation of the order expressly providing for a stay pending the application for permission to appeal. BBL objected. SKE duly filed its application for permission to appeal. Brandsmiths then alleged that SKE and Stobbs IP and two of its employees were acting in contempt of court. BBL then issued an application for criminal contempt, and then threatened the UK IPO itself with proceedings for contempt of court. A hearing at the UK IPO followed, and the Chief Hearing Officer sided with BBL, ordering that the Registrar should proceed to register the mark "as soon as administratively possible".
Striking the contempt application out
HHJ Paul Matthews heard an application by SKE, Stobbs IP, and the two employees to strike out the contempt application, and recited some of the law relating to such applications, including the very recently handed down Court of Appeal judgment in BHP Group (UK) Limited v Municipio de Mariana [2026] EWCA Civ 294.
That judgment referred to Lord Diplock's judgment in Attorney General v Times Newspapers Limited [1974] AC 273, HL, which identified three requirements for the due administration of justice, namely:
"first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law." (emphasis added)
HHJ Matthews discussed the present application, referring to a perception that contempt of court is increasingly relied on by litigants, and much more so than was the case when he began practising in the 1980s. He noted that:
"I appreciate that the contempt jurisdiction may be viewed by some litigators today as just another stick to beat your opponent with: the old adage is transmuted for modern times to All's fair in love and litigation. In some cases, too, it may also be seen as a marketing tool for professionals, whether lawyers or others, to show how strong and fearless they are, and how committed they are to their clients' cases. But in my judgment these are not functions of the contempt jurisdiction at all. Worse, and as I have said, its misuse consumes valuable judicial and legal resources, and costs a great deal of money. And this cannot help but prejudice other litigants seeking to have their disputes settled sooner rather than later. This is an unnecessary burden on society. In my judgment, the contempt jurisdiction should be exercised only where it is properly justified, and the courts should be vigilant to see that its exercise is so confined."
HHJ Matthews rejected BBL's argument that there is no requirement for it to show that the contempt application supports the public interest. He pointed out that the contempt of court jurisdiction is concerned with the public interest, and was satisfied there was an insufficient interest in the application.
Further, and importantly, HHJ Matthews identified the distinction between making submissions to the UK IPO and deciding what it does. SKE et al had done the former, and had no control over the latter. They were not statements that were misleading "in fact", as BBL had alleged. Writing to the UK IPO was therefore not a contempt of court, and the contempt proceedings were struck out.
Concluding thoughts
When word spread of the contempt proceedings, many practitioners' eyebrows arched somewhat. The court is plainly correct to prevent its processes and resources being used in this way, and maintaining the public's, and businesses', confidence in the UK court system, and the ability of that system to handle disputes justly and fairly.
Postscript
This Kat understands that another appeal is being heard in this case regarding a preliminary injunction that was obtained that prevented BBL from making unjustified threats. BBL's appeal relates to the interaction between the freedom of expression and unjustified threats, with BBL arguing that s.12(3) of the Human Rights Act meant that an injunction should not have been granted.
