The Court of Appeal has now ruled on the terms of an injunction to ensure that no further infringement takes place, and has rejected Asda’s application for permission to appeal the decision to the Supreme Court. Specsavers and Asda had agreed that the injunction should prevent Asda from using the straplines “be a real spec saver at Asda” and “spec saving at Asda” as well as the logo comprising two adjacent ellipses, which were the subject of the successful claim by Specsavers under article 9(1)(c). However, Specsavers wanted the injunction to cover similar uses of the straplines and logo as well, whereas Asda said that more general wording was not needed as it had stopped using the straplines and the logo in any case.
The Court of Appeal ruled that, because:
(i) Specsavers and Asda were still competitors and Asda’s original campaign specifically targeted Specsavers’ customers; and
(ii) Asda had not given any undertaking as to its future conduct;
a general form of injunction, as applied for by Specsavers, was appropriate. This was to ensure, for example, that Asda did not use straplines that were merely a slight variation from those that the Court of Appeal’s had originally ruled infringed Specsavers’ trade marks.
In addition, the Court of Appeal rejected Asda’s application for leave to appeal to the Supreme Court. Asda’s argument was that the injunction was not justified by the infringement that had taken place, but the Court of Appeal rejected that argument.