{"check":null,"uid":"a3e7153d4df5b9c2","title":"Entain Operations Limited & Ors v Liquidity Trading Limited & Ors","title_generated":false,"country":"Великобритания","organ":"Суды Англии и Уэльса","kind":"case","kind_name":"Судебная практика","lang":"en","date":"2026-09-10","summary":"Суд рассмотрел иск компании Entain против Liquidity Trading относительно нарушения авторских прав и торговых марок. Компания утверждала, что ответчик незаконно использовал ее торговые марки и логотипы в своих веб-сайтах, предоставляющих услуги сопоставления ставок и казино. Суд постановил, что компания Entain должна уточнить свои претензии относительно авторских прав, поскольку они недостаточно детализированы. В отношении нарушений торговых марок было решено оставить вопрос открытым до рассмотрения основного иска. Полный текст документа в базе пока отсутствует.","snippet":"","topics":["Интеллектуальная собственность в цифровой среде"],"status":"ok","error":"","text_len":123436,"versions":1,"url":"https://caselaw.nationalarchives.gov.uk/ewhc/ch/2026/2330","first_seen":"2026-09-11","last_checked":"2026-09-17 01:32","relevance":"hit","score":195,"query":"electronic health record","source_key":"caselaw_uk","verdict":{"relevance":"hit","score":195,"topics":["Авторское право и цифровой контент"],"need_body":8,"authorities":[],"evidence":[{"topic":"Авторское право и цифровой контент","term":"copyright","weak":false,"pos":328,"ctx":"contents  introduction 1  background 5  the dispute 5  alleged trade mark infringement 12 copyright infringement claim 16  the defendants’ application 24  the defendants’ case 24  the claim","zone":"текст","weight":1},{"topic":"Авторское право и цифровой контент","term":"copyright","weak":false,"pos":2481,"ctx":"graphs of the particulars of claim which contain the claimants’ claims of infringement of copyright on the basis that the relevant paragraphs fail to plead the essential ingredients of a ca","zone":"текст","weight":1},{"topic":"Авторское право и цифровой контент","term":"copyright","weak":false,"pos":2597,"ctx":"t the relevant paragraphs fail to plead the essential ingredients of a cause of action in copyright.  2.  the defendants’ application is supported by the witness statement of andrew thomas","zone":"текст","weight":1},{"topic":"Авторское право и цифровой контент","term":"copyright","weak":false,"pos":2979,"ctx":"his judgment, i have concluded that:  i)  with regard to the defendants’ application, the copyright infringement claim has not been pleaded with sufficient factual detail to establish a com","zone":"текст","weight":1},{"topic":"Авторское право и цифровой контент","term":"copyright","weak":false,"pos":3604,"ctx":"d counterclaim. however, had i not acceded to the defendants’ application relating to the copyright claim, then it is likely that i would have required that paragraphs 14 to 26 be struck ou","zone":"текст","weight":1},{"topic":"Авторское право и цифровой контент","term":"copyright","weak":false,"pos":4831,"ctx":"ever, in addition, the claimants allege that the defendants have infringed the claimants’ copyright in a number of their websites and in the following sports logos (“ the claimants’ sports","zone":"текст","weight":1}],"dropped":[]},"last_changed":"2026-09-11","meta":{"neutralCitation":"[2026] EWHC 2330 (Ch)","court":"The Business and Property Courts (Intellectual Property List)"},"source_url":"https://caselaw.nationalarchives.gov.uk/ewhc/ch/2026/2330","text":"This judgment was handed down remotely at 10.30am on 10 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.\n\n.............................\n\nThe Hon. Mr Justice Cawson:\n\nContents\n\nIntroduction\n1\n\nBackground\n5\n\nThe dispute\n5\n\nAlleged trade mark infringement\n12\nCopyright infringement claim\n16\n\nThe Defendants’ Application\n24\n\nThe Defendants’ case\n24\n\nThe Claimants’ case in response\n81\nDetermination of the Defendants’ Application\n112\n\nOverall conclusion in respect of the Defendants’ Application\n150\n\nThe Claimants’ Application\n152\n\nIntroduction\n152\n\nParagraphs 2 to 26 – the introductory narrative\n154\n\nParagraphs 62(a), 64(b) and 65 - confusion\n163\n\nParagraphs 91 to 93 – the Newer Marks\n168\n\nConclusion in respect of the Claimants’ Application\n172\n\nIntroduction\n\n1.\n\nThis matter was listed before me on 24 July 2026 for a case management conference. However, before my being able to give case management directions through to trial, it is necessary for me to determine:\n\ni)\n\nThe Claimants’ application dated 10 February 2026 (“\nthe Claimants’ Application\n”) seeking an order pursuant to CPR 3.4(2)(a), (b) and/or (c) and CPR 16.5 striking out the following paragraphs of the Defendants’ Defence and Counterclaim, namely:\n\na)\n\nParagraphs 2-26 and cross-references thereto in the body of the Defence at paragraphs 58(e), 72, 73(c) and 77, because, so it is alleged, they consist of generalised, irrelevant and/or inadmissible submissions;\n\nb)\n\nParagraph 62(a), the reference to a likelihood of confusion in paragraph 64(b), and the reference to\ns. 10(2)\nof the\nTrade Marks Act 1994\n(“\nTMA 1994\n”) in the preamble to paragraph 65, because, so it is alleged, there is no pleaded allegation of confusion in this case, nor damage to the origin function of the trade marks the subject matter of the present claim; and\n\nc)\n\nParagraphs 91-93, which are conditional pleas that certain trade marks (“\nthe Newer Marks\n”), which are still within their grace period, will become liable for revocation by the time of the trial of the Counterclaim on the basis that, so it is alleged, there is no procedural or substantive basis for this sort of conditional pleading;\n\nii)\n\nThe Defendants’ application dated 17 February 2026 (“\nthe Defendants’ Application\n”) seeking an order pursuant to CPR 3.4(2)(a) and/or (b) striking out those paragraphs of the Particulars of Claim which contain the Claimants’ claims of infringement of copyright on the basis that the relevant paragraphs fail to plead the essential ingredients of a cause of action in copyright.\n\n2.\n\nThe Defendants’ Application is supported by the witness statement of Andrew Thomas Lee (“\nMr Lee\n”) dated 10 March 2026. In response thereto, the Claimants rely upon the witness statement of Sara Louise Ashby (“\nMs Ashby\n”) dated 7 July 2026.\n\n3.\n\nFor the reasons set out in this judgment, I have concluded that:\n\ni)\n\nWith regard to the Defendants’ Application, the copyright infringement claim has not been pleaded with sufficient factual detail to establish a complete cause of action or, in any event to enable the Defendants to understand the case they must answer, and that it should be struck out unless the Claimants can promptly amend their pleadings to cure the defects that I identify below.\n\nii)\n\nWith regard to the Claimants’ Application, subject to the reference to\ns. 10(2)\n\nTMA 1994\nbeing deleted from paragraph 65 thereof, it is not appropriate to strike out any part of the Defence and Counterclaim. However, had I not acceded to the Defendants’ Application relating to the copyright claim, then it is likely that I would have required that paragraphs 14 to 26 be struck out, or at least redrafted and repositioned within the Defence and Counterclaim in order to avoid strike out.\n\n4.\n\nMr Daniel Selmi appeared on behalf of the Claimants, and Mr Simon Malynicz KC and Mr Phillip Johnson appeared on behalf of the Defendants. I am grateful to them for their thorough and helpful written and oral submissions.\n\nBackground\n\nThe dispute\n\n5.\n\nThe Claimant companies are each part of the Entain Group of companies, which is one of the world’s largest sports betting and gaming groups both online and in the retail sector. As such, the Entain Group owns a portfolio of established brands. Its sports brands include Coral, Ladbrokes, bwin and Sportingbet, and its casino gaming brands include Gala Bingo, Gala Casino, Gala Spins, Foxy Bingo, Foxy Games and Party Casino. These brands were all acquired by the Entain Group over a period of time, and many of them are long established.\n\n6.\n\nThe present proceedings concern allegations of trade mark infringement relating to some 18 of the Claimants’ trade marks.\n\n7.\n\nHowever, in addition, the Claimants allege that the Defendants have infringed the Claimants’ copyright in a number of their websites and in the following sports logos (“\nthe Claimants’ Sports Logos\n”) and the following casino logos (“\nthe Claimants’ Casino Logos\n”), which such logos (together “\nthe Logos\n”) also form the subject matter of the trade mark infringement claim:\n\nThe Claimants’ Sports Logos\n\nThe Claimants’ Casino Logos\n\n8.\n\nThe Claimants’ claims relate to the operation by the Defendants of their\n“matched betting”\nand\n“casino offer”\nwebsites, namely the Outplayed Website, the OddsMonkey Website, the Team Profit Website and the Team Casino Website (“\nthe Defendants’ Websites\n”).\n\n9.\n\nMatched betting is a technique used to make a profit from bookmakers' promotional offers, rather than from predicting sporting outcomes. It essentially operates as follows:\n\ni)\n\nA qualifying bet is placed with a bookmaker to unlock a bonus offer (for example, “\nBet £10, get £30 in free bets”\n).\n\nii)\n\nThe person placing the bet then lays the same outcome on a betting exchange, thereby effectively betting against the original bet.\n\niii)\n\nBecause all outcomes are thereby covered, the result of the sporting event has little impact on the overall position.\n\niv)\n\nOnce the bonus or free bet is awarded, the process is repeated in the expectation of converting most of the bonus value into cash.\n\n10.\n\nBetween them, the Defendants’ Websites offered matched betting services including the provision of advice as to how to benefit therefrom. Part of the process involved the ability to click on links within the Defendants’ Websites taking the customer to the particular sports betting company’s own website, and specifically to the offer being promoted by the latter. The link on the Defendants’ Websites, in order to identify the relevant bonus offer, included the Claimants’ Sports Logos. Clicking on the links then takes the customer to the Claimants’ own websites. The inclusion of the Claimants’ Sports Logos in the links on the Defendants’ Websites is alleged by the Claimants to give rise to the trade mark infringement claims and infringement of copyright claims in relation to the Claimants’ Sports Logos. The display of the Claimants’ Websites on the Defendants’ Websites is said to give rise to an additional infringement of copyright claim in respect of copyright claimed by the Claimants in their websites.\n\n11.\n\nSimilar allegations are made in relation to services provided by the Defendants to enable customers to benefit from promotions such as free spins or deposit bonuses given to customers to encourage signups, deposits and continued play in relation to the Claimants’ bingo and casino gaming businesses. This is said to involve infringement of trade marks and copyright in respect of the Claimants’ Casino Logos.\n\nAlleged trade mark infringement\n\n12.\n\nWith regard to the trade mark infringement claim, the Claimants contend that the Defendants are not merely describing bookmakers’ offers but that they are actively using the Claimants’ brands within their own commercial matched betting service. The Claimants allege that the Defendants’ activities have given rise to claims for trade mark infringement under\ns. 10(1)\nand\ns. 10(3)\n\nTMA 1994\n:\n\ni)\n\nIn relation to\ns. 10(1)\n, the so-called\n“double identity”\nprovision, the Claimants allege that the Defendants have used signs identical to their registered marks in relation to identical or highly similar services, namely betting and gaming services;\n\nii)\n\nIn relation to\ns. 10(3)\n, relating to reputation-based infringement, the Claimants rely upon what they say is the reputation enjoyed by their brands. In short, they contend that their trade marks have substantial goodwill and reputation, that consumers are caused to call those trade marks to mind, that the Defendants have taken unfair advantage of this reputation, and that the Defendants’ conduct has caused detriment to distinctive character and reputation. Particular reliance is placed by the Claimants upon\nLidl Great Britain Ltd v Tesco Stores Ltd\n\n[2024] EWCA Civ 262\n(“\nLidl v Tesco CA\n”) at [12]-[13] and [21]-[26], per Arnold LJ.\n\n13.\n\nThe Defendants deny the allegations of trade mark infringement relying, primarily, upon the referential use defence under\ns. 11(2)\n(c)\nTMA 1994\n, contending that they merely refer customers to the Claimants’ services, honestly and lawfully. The Defendants describe themselves as providers of information, training and educational guidance about matched betting, rather than as providers of gambling services themselves. The Defendants also raise further defences such as honest concurrent use and acquiescence. Further, the Defendants’ counterclaim, seeking invalidity declarations for some trade marks, and revocation of others for non-use.\n\n14.\n\nWhilst the Defendants, by the Defendants’ Application, seek to strike out the Claimants’ infringement of copyright claims, they make no such application in respect of the trade mark infringement claims. Whilst the Defendants maintain that such claims are weak, they accept that the claims are sufficiently pleaded and raise issues that have a real prospect of success.\n\n15.\n\nHowever, the Claimants, by the Claimants’ Application, do seek to strike out parts of the Defendants’ Defence and Counterclaim relating to their defence of the trade mark infringement claim, and so it will be necessary to return to consider the same in a little more detail in due course.\n\nCopyright infringement claims\n\n16.\n\nIt is the Claimants’ case that the Claimants’ Sports Logos, the Claimants’ Casino Logos and the Claimants’ websites are original artistic works, being graphic works, pursuant to\ns. 1(1)\nand\ns. 4(1)\n(a) of the\nCopyright, Designs and Patents Act 1988\n(“\nCDPA 1988\n”), that qualify for UK copyright protection pursuant to\ns. 154(1)\nand/or (2)\nCDPA 1988\n, further or alternatively, pursuant to s.155(1) and/or (2) CDPA 1988.\n\n17.\n\nWith regard to originality, the Claimants maintain that originality is a low threshold, and that copyright can subsist in logos even where they consist of relatively simple elements. The Claimants further maintain that it is unnecessary at the pleading stage to set out every historical version of the Logos, which are said to be matters for witness evidence at trial rather than pleading. In advancing this case, the Claimants place considerable reliance upon\nLidl v Tesco CA\n, and the decision of Joanna Smith J in that case at first instance (\n[2023] EWHC 873 (Ch)\n) (“\nLidl v Tesco HC\n”).\n\n18.\n\nWith regard to ownership, the Claimants’ case is that ownership can reasonably be inferred because:\n\ni)\n\nThe Claimants acquired the relevant businesses and brands through corporate acquisitions;\n\nii)\n\nThe Claimants own the registered trade marks;\n\niii)\n\nThe Claimants have used the brands openly for many years; and\n\niv)\n\nThere is no competing ownership claim.\n\n19.\n\nTo the extent that ownership cannot presently be established, the Claimants maintain that they are at least exclusive licensees entitled to bring a copyright infringement claim.\n\n20.\n\nWith regard to infringement itself, the Claimants maintain that establishing infringement is straightforward because the Defendants reproduced the logos and reproduced screenshots of the Claimants’ websites, and the copies are effectively exact reproductions. Accordingly, so it is said, there has been infringement by copying (\ns.17\n\nCDPA 1988\n) and communication to the public (s.20) CDPA 1988.\n\n21.\n\nIn response to the Defendants’ Application, the Claimants have produced draft Amended Particulars of Claim (“\nthe draft APofC\n”), which the Defendants are content to accept can be treated as the Claimants’ relevant statement of case for the purposes of the Defendants’ Application to strike out the relevant parts of the Particulars of Claim. Paragraph 15 of the draft APofC, which contains the allegations concerning the Claimant’s case as to subsistence and ownership of copyright is set out in full as Appendix A to this judgment.\n\n22.\n\nFor reasons that I shall expand upon, it is the Defendants’ case that paragraph 15 of the draft APofC fails to disclose a case of subsistence and ownership of copyright in the Claimants’ Sports Logos, the Claimants’ Casino Logos or the Claimants’ websites because it fails to plead sufficient facts to make out a cause of action. However, subject thereto, the Defendants also seek to raise other defences to the copyright claim including defences based on abuse of rights, and freedom of expression.\n\n23.\n\nAgainst this background and bearing in mind not least that a significant part of the Claimants’ Application would become otiose if the Defendants were successful in striking out the copyright claim, I consider it appropriate to deal firstly with the Defendants’ Application, before turning to consider the Claimants’ Application.\n\nThe Defendants’ Application\n\nThe Defendants’ case\n\nIntroduction\n\n24.\n\nThe Defendants emphasise the point that copyright is entirely different from the protection of registered trade marks. In particular, the point is made that there is no official register for the purposes of the\nCDPA 1988\n, and that a copyright work is in effect, as the Defendants put it, carved out of the air by the pleader.\n\n25.\n\nThus, so it is submitted: (i) the work must first be identified, (ii) the original aspects of the work must be identified and stated (which will be problematic where, as in the present case, the works are iterative over years and decades), (iii) authorship (and first ownership) must be established and the facts pleaded as the author is the\ncreator\nof an artistic work and all creative choices have to be linked to that individual, and (iv) the chain of title from the author (as presumptive first owner) to the claimant must be analysed and established by reference to material facts stated.\n\n26.\n\nThe Defendants refer to Bullen & Leake & Jacob’s Precedents of Pleadings, 20\nth\nEdn, at 75-08 where it is said that particulars of claim in a copyright claim must contain the following allegations:\n\ni)\n\nThe title of the Claimant to sue;\n\nii)\n\nThe subsistence of copyright in the work, which must be identified with precision;\n\niii)\n\nThe infringement by the defendant; and\n\niv)\n\nThe relief claimed.\n\n27.\n\nThe essence of the Defendants’ case is that even in their draft amended form, the Particulars of Claim are entirely inadequate in that: (1) they lack particularity in identifying the works in the Claimants’ websites, (2) they provide no details as to which aspects of the logos or websites are not copied from earlier versions, (3) they lack information as to what makes the works\n“original”\n, and lack particularity as to the creative choices made (and ignore the basic rule that words alone cannot be copyright works), (4) they are incomplete as to the authors of the works or the dates of their publication, (5) they lack any indication of the chain of title to the claimed copyright, (6) they rely upon presumptions but without the necessary particulars to support their application, and (7) they seek to overcome their difficulties, in particular in relation to ownership, by seeking to rely upon evidential inference based on the use of the works alone.\n\n28.\n\nIn short, the Defendants maintain that despite the original Particulars of Claim, a Reply, draft APofC, three witness statements, and months of intensive internal investigations, the Claimants still cannot tell the Court what the copyright works are, who made them, when they were made or first published, what about them is original, or how any identified Claimant has title. It is submitted that these are not gaps in the evidence, but are missing elements of the cause of action itself.\n\n29.\n\nIt is necessary to consider the alleged defects in turn.\n\n(i)\n\nLack of particularity regarding the Claimants’ websites\n\n30.\n\nThe Defendants complain that there is no indication as to what is claimed as a copyright work in respect of each of the screenshots relied upon by the Claimants. They argue that a website is not a single artistic work, but instead comprises many separate elements, including text, code, graphics, photographs, databases, layouts and software. They submit that the Claimants have failed to identify which elements are being relied upon, and that it is incumbent upon the Claimants not just to identify such elements, but to identify the individual who created it, how it is original, and how the particular Claimant claiming copyright has title to it.\n\n31.\n\nWhilst the Claimants have now listed certain employees said to be designers of some aspects of their websites, the information provided, it is said, raises more questions than it answers. A number of individuals are said to be responsible for the\n“layout”\n, but the Defendants say that this merely consists of providing betting information in part and providing different betting information in another box next to it or below it, and that the Claimants have not identified which elements are said to be the original copyright work. Further, only one of the identified employees is employed by a Claimant company, rather than other group companies. In addition, in relation to marketing banners on the websites, the designer of only one of them has been identified, and no potential author has been identified for the\n“games tiles”\nthat form a significant element of the Claimants’ websites.\n\n32.\n\nIn answer to the Claimants’ contention that because the Defendants have taken the entirety of the web page in question, that must be sufficient to substantiate an infringement, the Defendants submit that that could only be the case if the Claimants have, which it is said that they have not, identified subject matter, pleaded why that subject matter is original in the copyright sense, identified the authors, and established title from that author to the Claimant alleging infringement in relation to the particular website.\n\n33.\n\nWhilst the Claimants have focused their claim on particular screenshots of particular websites, it is submitted that that does not assist in advancing their case in that it represents how the website presented at a particular moment. This is said to be problematic unless the Claimants can establish that any use by the Defendants was after that moment and it is submitted that an entire screenshot cannot be original at a particular moment in time in circumstances where it has been developed over a period of time. The Defendants referred at the hearing to the fact that the screenshots relied upon by the Claimant are from the Defendant's website (and not the Claimants' website). Further, the Defendants submitted that an allegation of copying requires identification of an original and of a copy. They submitted that the Claimants have identified only a copy (the screenshot of the Defendants' Website) and have tried to make it play both roles, which is said to be improper. In addition, the Defendants point to the fact that the Claimants are claiming copyright in “screenshots” of the Defendants Website, and they submit that the work copied has to come first, and so a screenshot of something cannot be a copy of the thing it itself copies.\n\n(ii)\n\nLack of particularity regarding copying\n\n34.\n\nThe Defendants rely upon the general principle that an author can only obtain copyright in a work to the extent that the work is not copied from an earlier work – see e.g.\nInterlego AG v Tyco Industries Inc\n\n[1989] AC 217\n, at 262-3, per Lord Oliver. The Defendants refer to the fact that copied elements cannot attract copyright protection has been confirmed by the Court of Justice in C-580/23\nMio\n, EU:C:2025:941, [79]-[80], which, although post-Brexit, is relied upon as being persuasive. Likewise, C-649/23\nInstitutul de Istorie şi Teorie Literară “G. Călinescu”\n, EU:C:2025:488, where the Advocate General noted at [67] – [68] that:\n\n“\n…Labour and skill, however complex and painstaking, cannot, in themselves, justify protection of such an edition by copyright if they do not express any originality in the choice or arrangement of the information contained in that edition\n”.\n\n…\n\n“\nit is necessary to examine what intervention by the author of a critical edition consists of as compared with the original work\n”\n\n35.\n\nThe relevant principles are said by the Defendants to have been succinctly explained by Arnold LJ in\nLidl v Tesco CA\nat [44]:\n\n“\n…The proposition of law which counsel for Tesco sought to derive from Dicks v Brooks [(1880)\n15 Ch D 22\n] is not in dispute, however, and can be simply stated. If A creates a first original work, B copies A’s work but adds sufficiently to it to create a second original work, and C copies from B’s work only the part created by A, then B has no claim for copyright infringement against C because that which has been copied by C is not original to B.\n”\n\n36.\n\nSignificantly, in\nLidl v Tesco CA\n(see at [188] et seq) a focus of attention in relation to the copyright infringement claim was upon the difference between stage 2 of the development of the particular logo, and stage 3 thereof representing the current version the subject matter of the claim. The Court of Appeal held that there was sufficient originality in relation to the labour and skill involved at stage 3, but that all that was capable of protection was that which was added at stage 3\n.\n\n37.\n\nThe Defendants submit that whilst the Claimants allege at paragraph 15(a) of the draft APofC that the Claimants’ logos and websites are not copied from other graphic works and are the expression of their authors’ own intellectual creation, this contradicts the plea in the original (now proposed to be deleted) paragraph 15(b) of the Particulars of Claim that the Claimants’ logos and websites were\n“originally created by teams of employees of the Claimants and were subsequently added to by other teams of employees of the Claimants over time”.\n\n38.\n\nThe Defendants submit that the Claimants need to particularise when the particular iteration of the work claimed to have been infringed came into being, given that:\n\ni)\n\nThe Claimants’ logos and websites have been developed over time such that the Claimants’ Sports Logos, the Claimants’ Casino Logos and the Claimants’ websites as set out in the draft APofC are the\nfinal\nworks (i.e. with additions), and not the\noriginal\nworks.\n\nii)\n\nA derivative work can only be original to the extent that the\nadditions\nfrom the earlier work satisfy the requirement of originality, and any protection in the derivative work will extend to those original additions (and not the parts copied).\n\niii)\n\nIn many cases, as the Claimants now accept, logos and websites have been originally created and subsequently developed by individuals not being their employees, or other unconnected entities. Thus, the authors of the original versions will be different from the authors of the final work.\n\n39.\n\nThe Defendants submit that it is apparent that each of the Claimants’ Sports Logos and Casino Logos are copies of earlier (similar) works. In this respect:\n\ni)\n\nIn relation to the Ladbrokes Logo, it is said that the evidence shows this logo is based on designs involving white lettering and red background which date back to at least the 1970s. It is submitted that the Claimants have failed to particularise the original aspects of the current version of the Ladbrokes Logo compared to the various earlier iterations.\n\nii)\n\nIn relation to the Sportingbet Logo, the evidence is said to show that various iterations of the logo have been used since 2004. The point is made that copyright in the present iteration only exists to the extent it is not copied from these earlier (or other earlier) iterations.\n\niii)\n\nIn relation to the Foxy Bingo Logo, it is said that this appears to have originated as the head of a costume, in which case the logo will be copied from that costume and is not therefore original in the sense of not being copied.\n\niv)\n\nIn relation to the Gala Bingo Logo, the evidence is said to show that the yellow circle with blue writing dates from at least 2010 and that, again, the current iteration, being an evolution of the 2010 version, is not original to the extent that it was copied from the earlier version.\n\n40.\n\nIn the circumstances, it is submitted that in the absence of pleading the earlier version of the logo and the changes made in the most recent version, it is impossible for the Defendants to address whether those small changes allow sufficient room for there to be any sufficient creative choices.\n\n(iii)\n\nLack of particularity regarding creative choices\n\n41.\n\nThe Defendants submit that the Claimants’ Sports Logos and Casino Logos are not original on the basis that they do not represent enough creativity that is the author’s own intellectual creation as required by\ns. 1(1)\n(a)\nCDPA 1988\n. This submission is made on two bases. Firstly, that in the absence of identification of the\n“non-copied”\naspects of the current iteration of the logos, it is impossible for the Defendants to plead to whether the logos are original or not. Secondly, the logos (and each of them) in their\nentirety\nlack the necessary originality to be copyright works.\n\n42.\n\nWith regard to the alleged failure to plead creative choices, the Defendants point to the fact that in paragraph 15(a) of the draft APofC, the Claimants have alleged that the relevant logos and websites are\n“the expressions of their authors’ own intellectual creations, reflecting their personalities, as an expression of their free and creative choices so as to stamp the works with their personal touch.”\n\n43.\n\nThe Defendants refer to the test of originality as having been recently summarised in the persuasive case of C-649/23\nInstitutul de Istorie şi Teorie Literară “G. Călinescu”\n, EU:C:2026:213, at [50], and to it having been highlighted in that case that it is necessary to identify the\n“intellectual creation reflecting the personality of its author, as an expression of his or her free and creative choices”\nwith\n“sufficient precision and objectivity”\n.\n\n44.\n\nOn this basis, it is submitted that the Claimants need to plead as to what elements have been added to the current versions of the relevant logos and websites in respect of which originality is claimed, and to precisely particularise the creative choices made for each of these additions. It is complained that paragraph 15(a) of the draft APofC simply states the legal test, without identifying the facts that give rise to the assertion that is made, which is described as being as vague and formulaic as possible thus allowing the Claimants to keep the Defendants guessing as to which elements are said to be original and therefore which need to be challenged for lack of originality.\n\n45.\n\nWith regard to individual words, it is submitted that it is trite that a single word cannot be a literary work – see e.g.\nR Griggs Group v Evans\n[2003] EWHC 2914 (Ch)\n,\n[2004] FSR 31\n;\n[2005] EWCA Civ 11\n,\n[2005] FSR 31\n(“Dr Martens” is not a copyright work). Accordingly, so it is submitted, only the presentation of the words can attract copyright and the creative choices as to their presentation need to be particularised. It is said that as the marks are so banal, and copied, this is simply impossible.\n\n46.\n\nIn making these submissions, the Defendants say that they are not engaging with the merits as such, rather that these are the sorts of arguments that could be made if the Claimants had properly pleaded their case.\n\n(iv)\n\nNo identification of first publication or authorship\n\n47.\n\nAn artistic work can only qualify for copyright protection based on the nationality of the author of the work (\ns. 154\n\nCDPA 1988\n) or first publication (\ns. 155\nCDPA 1988). First publication means the first time a work is issued to the public or made available on an electronic retrieval system but not otherwise communicated to the public (s. 175 (1) and (4)(a) CDPA 1988).\n\n48.\n\nOn this basis, the Defendants submit that the Claimants need to, but have failed to identify\neither\nthe author of each of the works or the first publication of each of the works to qualify for copyright protection.\n\n49.\n\nWith regard to date of first publication, it is said that it is simply alleged that each of the works qualify for protection by reason of first publication – see paragraph 15(c) of the draft APofC. It is submitted that it is necessary to plead the\ndate\nand\nplace\nwhen it was first published absent which the Defendants are unable to challenge the fact of first publication without any pleading when it is said to have occurred.\n\n50.\n\nWhilst the original Particulars of Claim alleged publication in the United Kingdom, this is said to be unlikely for some of the works, given that:\n\ni)\n\nbwin was started in Austria and so there is no basis for supposing first publication was in the United Kingdom.\n\nii)\n\nFoxy Bingo was originally a Caribbean company set up by a U.S. citizen and so there is no basis for saying first publication was in the United Kingdom.\n\niii)\n\nThe First and Second Claimants are incorporated and operate in Gibraltar, albeit that the Second Claimant has a UK establishment office. First publication may well have been in Gibraltar.\n\n51.\n\nParagraph 15(c) of the draft APofC simply alleges that the logos and websites qualify for copyright by reason of the country of first publication without particularising the country in question. This is said to be wholly inadequate and worse than the original version, and means that any challenge to the first publication is entirely impossible and that the simple existence of a work would be enough for it to qualify on this basis.\n\n52.\n\nWith regard to authorship, it is complained that there is no attempt by the Claimants to particularise the name or details of the author or authors of the work. At paragraph 15(c) of the original Particulars of Claim, it was alleged not only that the logos and websites were created and subsequently added to by teams of employees of the Claimants, but that the employees were all British citizens or domiciled or resident in the United Kingdom. The draft APofC now simply alleges that the authors were qualifying persons under\ns. 154\nof\nCDPA 1988\n, without pleading any employment relationship or any further detail. The Defendants submit that it is necessary to identify the names of the author or authors, and that the generalised plea that is proposed impermissibly negates the need to establish qualification of a work.\n\n53.\n\nThe Defendants submit that the significance of the fact that it is no longer pleaded that unknown authors were employees of the Claimants is that, absent an employee relationship being established, copyright can only pass by assignment from the original owner (the author) to the Claimants, and no assignments have been pleaded for any of the works (\ns. 90\n\nCDPA 1988\n).\n\n54.\n\nThus, so it is submitted, in the absence of any identity of the author or authors of the work it is impossible to establish initial ownership, either based on employment (see\ns. 11(2)\n\nCDPA 1988\n) or otherwise. Further, even if employment were relied upon then it would be necessary for the terms of that employment to contain no\n“agreement to the contrary”\n. This is said to all further demonstrate the requirement for the author to be identified and details of the contract to be pleaded.\n\n55.\n\nIt is pointed out that the allegation in the original Particulars of Claim that\nall\nthe authors of the Claimants’ Logos were employees thereof, and that they were British or employed in this jurisdiction would appear to be contrary to the true position notwithstanding that the Particulars of Claim contained a statement of truth. It is said that the proposed amended version is little more than wishful thinking in the light of the following evidence that has emerged:\n\ni)\n\nThe Ladbrokes Logo would appear to have been devised at least in part by an agency called\n“the Joneses”\n, and not by employees of the Claimants. It is submitted that it is necessary to plead the relevant agreement between the Claimants (or a predecessor) and the Joneses, which has not been done.\n\nii)\n\nThe Coral logo dates from at least 1991. The trade mark comprising the Coral Logo was assigned from Coral Group Trading to the Third Claimant in 2019. If copyright in the Coral Logo were ever owned by the Coral Group Trading it would have had to have been assigned to one of the Claimants (even if it had been created by employees of a Coral entity). This has not been pleaded.\n\niii)\n\nbwin was originally set up in Austria, and in their evidence the Claimants now suggest that the bwin Logo was designed by “Buero X”, which is understood to be a trade name or company rather than the name of an individual, and the individual employee or employees of Buero X who designed the Logo have not been identified. If Buero X was based in Austria, as is it reasonable to infer, then under Austrian law, as understood, the employer does not obtain copyright in any artistic works (it remains with the employee except in relation to software: Urheberrechtsgesetz, art 40a). Further, Austrian copyright itself cannot be assigned (as it is a monist country) and can only be licensed. In any event, any assignment of ownership under UK law would have to be from the relevant employee personally to the relevant Claimant. The Claimants have admitted that they cannot find any assignment from Buero X or, implicitly, any employee thereof.\n\niv)\n\nIt would appear that the Gala Bingo brand was devised by “the Dairy Agency”. If so, the original author would therefore be someone at the Dairy Agency and not an employee of the Claimants, and there is no pleading of any assignment from the Dairy Agency to the relevant Claimant.\n\nv)\n\nThe Claimants’ evidence is that the Sportingbet Logo was created by DPZ Comunicacoes LTDA a Brazilian company. Further, being a company and not an individual, the Defendants submit that it is necessary for the Claimants to identify the relevant individual who created the work, their employment relationship with DPZ and, in any event, the necessary assignments, which has not been done.\n\nvi)\n\nFoxy Bingo was originally a Caribbean company set up by a U.S. citizen. There is no evidence of any assignment from this company to the Claimants or any of them.\n\nvii)\n\nThere is evidence that the PartyCasino brand was devised by an agency called\n“Behance”\n. Consequently, the author is likely to have been an employee of this agency, and there is no evidence of any assignment from Behance to any one or more of the Claimants.\n\nviii)\n\nThere is no pleading as to the relationship between the Claimants (or any of them) and the costume designer for the Foxy Logo.\n\n56.\n\nThere is therefore said to be strong evidence, and that there are a number of admissions on the part of the Claimants that the Logos, or at least most of them, were\nnot\ndevised by employees of the Claimants (as originally pleaded), and the Defendants rely upon the fact that there is no pleading that the relevant rights were assigned from any author (whether identified or otherwise).\n\n57.\n\nThe Defendants submitted that, this being the case, it is necessary for the Claimants, in order to have standing to bring the claim, to establish a chain of title from the original authors (or their employers) to a particular Claimant, and that in the absence thereof, the plea is simply incomplete.\n\n(v)\n\nNo particularisation of chain of title\n\n58.\n\nThe Defendants submit that, as a matter of principle, it is important to establish the chain of title for any copyright work. They rely upon\nCopinger and Skone James on Copyright\n(19th Ed, 2024) at [4-67]:\n\n“\n….the title to a work has to be proved by establishing a chain of title from its root with the first owner through to the present claimant….there is no short cut if a purchaser requires title to be fully deduced.\n”\n\n59.\n\nThe Defendants rely upon what was stated by the\nReport of the Copyright Committee\n(1952, Cmnd 8862) (the Gregory Committee) at [286] in support of the contention that the person challenging title has to prove nothing:\n\n“\nThe proposals made to us were designed to shift the onus of proof in copyright actions, both in regard to title and subsistence of copyright, so that the onus should lie upon the Defendant to disprove these matters. This would mean placing an obligation on the Defendant which it would be impossible for him to discharge without access to contracts and other documents which passed between the parties probably many years earlier. We have come to the conclusion that any hardship which copyright owners may suffer under the present provisions is a further example of what they must reasonably accept in return for the very considerable benefits of securing copyright protection without formality or fee…\n”\n\n60.\n\nOn the basis thereof, it is submitted that the Claimants not only need to identify the date of creation to start the chain of title, but they must then plead and prove each and every link of that chain and any relevant assignment or agreements that is relied upon.\n\n61.\n\nConsequently, so it is submitted, if the Claimants’ employees could not have been the authors (as originally pleaded), the Claimants would need to plead title from the\nactual\nauthor/first owner to one or more of the Claimants (including any employee relationship between the author and their employer).\n\n62.\n\nThe Defendants point to the fact that the only\n“link”\nin the chains of title to the various Logos pleaded by the Claimants is an inference that copyright would be transferred during an acquisition – see paragraph 15(aa)(i)(A) of the draft APofC. It is said that this, at best, covers one link in each chain, but that chain of title must start from the beginning and end in a specific Claimant, and must be evidenced. The Defendants complain that the Claimants do not plead any reliance upon the relevant acquisition agreements, or set out the clause or clauses therein which it might be suggested had this effect.\n\n63.\n\nOn this basis, it is submitted that the Claimants’ failure to plead chain of title means that they do not have standing to bring any copyright claim (whether as owner or exclusive licensee).\n\n64.\n\nThe Defendants rely upon the proposition that any claim for copyright infringement has to be brought by the owner (\ns. 96(1)\n\nCDPA 1988\n), or the exclusive licensee (s. 101 CDPA 1988), and that relief will only be granted to the legal owner (see\nBatjac Productions Inc. v Simitar Entertainment (UK) Ltd\n\n[1996] FSR 139\n, 151-2), or where the exclusive licensee brings a claim where the legal owner is joined (see\ns. 102(1)\n\nCDPA 1988\nand\nFlitcraft Ltd v Price\n\n[2024] EWCA Civ 136\nat [36]). Consequently, even if the Claimants were able to establish that one of them was the exclusive licensee, they would still need to identify the copyright owner to join them to the claim.\n\n65.\n\nFurther, even if the copyright works were all owned by one of the Claimants, it would still be necessary for the Claimants to plead which of them owns which Logo. It is submitted that, in the absence of such a pleading, there are practical (as well as procedural) issues, e.g. if an injunction were to be granted, it could only be enforced by the copyright owner or an exclusive licensee and not simply by a member of the same group.\n\n66.\n\nThis is said by the Defendants to once more demonstrate the perfunctory pleading by the Claimants of their copyright claim, even in the draft amended form, and it is said to be apparent from the purported attempt to rely upon the statutory presumptions that the Claimants are cognoscente of their pleading difficulties.\n\n(vi)\n\nNon application of the presumptions\n\n67.\n\nSo far as relevant,\ns. 104\n\nCDPA 1988\nprovides as follows:\n\n“104 Presumptions relevant to literary, dramatic, musical and artistic works.\n\n(1)\n\nThe following presumptions apply in proceedings brought by virtue of this Chapter with respect to a literary, dramatic, musical or artistic work.\n\n…\n\n(4)\n\nWhere no name purporting to be that of the author appeared as mentioned in subsection (2) but—\n\n(a)\n\nthe work qualifies for copyright protection by virtue of\nsection 155\n(qualification by reference to country of first publication), and\n\n(b)\n\na name purporting to be that of the publisher appeared on copies of the work as first published,\n\nthe person whose name appeared shall be presumed, until the contrary is proved, to have been the owner of the copyright at the time of publication.\n\n…\n\n(5)\n\nIf the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it shall be presumed, in the absence of evidence to the contrary—\n\n(a)\n\nthat the work is an original work, and\n\n(b)\n\nthat the plaintiff’s allegations as to what was the first publication of the work and as to the country of first publication are correct.”\n\n68.\n\nAs is apparent from paragraph 15 (d) of the draft APofC, the Claimants plead that they will, if necessary, rely upon these statutory presumptions\n“without prejudice to the foregoing, where the author(s) of the Claimants’ Logos and Claimants’ Websites cannot be ascertained by reasonable enquiry.”\n\n69.\n\nThe Defendants describe this as an attempt by the Claimants to paper over the cracks, and they submit that the Claimants’ purported reliance thereupon further emphasises the total inadequacy in their copyright pleading.\n\n70.\n\nWith regard to\ns 104(4)\n, the Defendants submit that it can have no application for the following reasons:\n\ni)\n\nThere is authority for the proposition that, for the statutory presumptions to apply, it is necessary to identify and thus plead the date of first publication with the name of the publisher – see\nHenry Hadaway Organisation Ltd v Pickwick Group Ltd\n[2015] EWHC 3407 (IPEC)\n, at [100], per Melissa Clark, sitting as a Deputy High Court Judge, (a\ns.105\n\nCDPA 1988\ncase where it was said that in order to raise a valid presumption, the date of issue of the CD to which the statement is applied must be known).\n\nii)\n\nThe Claimants have not pleaded (and have admitted they do not know) when the works were first published (as to which see\ns. 175(1)\n\nCDPA 1988\n). Accordingly, they cannot identify the\nrelevant copy\nof the work as the basis for the presumption as to first publication to apply.\n\niii)\n\nThe Claimants have failed to plead the name of the publisher whose name they are seeking to say first appeared on the (unspecified) work, or how that name appeared. Accordingly, there is actually no fact to be presumed correct and so there cannot be a presumption as to ownership.\n\niv)\n\nEven if\ns. 104(4)\n\nCDPA 1988\nwere engaged, the presumption is that the publisher was the\n“owner of the copyright\nat the time of publication\n”\nand not at the time the action was commenced. Accordingly, if a publisher’s name were on the copy, it would be necessary to establish title from that name to the relevant Claimant (if different).\n\n71.\n\nThe Defendants further submit that\ns. 104(5)\n\nCDPA 1988\nalso cannot assist the Claimants, for the following reasons:\n\ni)\n\nIt is submitted that the presumption that the work is an\n“original work”\ncannot trump the basic rules of originality. As to this, it is said that:\n\na)\n\nThe presumption is not an obligation arising from the Berne Convention, article 15.\n\nb)\n\nThe work has to be something in respect of which it is possible for the author to make\n“free and creative choices”\nand which can reflect the\n“personality of the author”\n(see paragraph 43 above). Thus, for example, a copy of the alphabet being written out in order does not become an original work simply because the author cannot be identified.\n\nc)\n\nIn order to rely upon the presumption, it must be a requirement to plead the point in time at which the work was first published. In other words,\ns. 104(5)\nrequires to be read as a single unit, sub-sections (5)(a) and (b) being conjunctive, and thus if there is nothing to support sub-section 5(b), sub-section (5)(a) cannot stand alone. Otherwise, so it is submitted, there would be absurd consequences in that: (i) if it were open to a party to claim that they do not know and cannot ascertain the author of a work having made reasonable enquiries, then anybody could, effectively, assert title in anything, (ii) in responding to the claim, a defendant would have no way, e.g. through disclosure, of identifying earlier possible iterations of the work or of providing\n“evidence to the contrary”\nshould there be any.\n\nii)\n\nWhilst the Claimants have, at paragraph 15(c) of the draft APofC, pleaded that the Claimants’ Sports Logo, Claimants’ Casino Logos and the Claimants’ websites qualify by reason of first publication, they have not identified therein any identified first publication of any of the relevant works. Indeed, paragraph 15(aa)(i) of the draft APofC and paragraph 11(b) of the Reply suggest that the Claimants cannot identify the\n“date(s) of creation of the said works”\n, namely the Claimants’ Sports Logos and Casino Logos. Consequently, there is no first date pleaded as the date the works were\n“first published”\n.\n\niii)\n\nIn short, it is said that it cannot be sufficient to plead no more than the work has been first published without any indication of date or place of publication whatsoever to engage the presumption.\n\n72.\n\nIn conclusion, as it was put by Mr Malynicz KC in the course of submissions:\n“Authorship-based qualification fails for want of authors, and publication-based qualification fails for want of a publication and a publication date and circumstances. The statutory condition is simply not addressed in a pleading that has already been amended once to deal with precisely this topic.”\n\n(vii)\n\nOwnership/Exclusive Licence claimed by inference\n\n73.\n\nThe Defendants rely upon the observations of Nicklin J in\nBaroness Lawrence of Clarendon OBE v Associated Newspapers Ltd\n[2026] EWHC 1637 (KB), where he said at [64]:\n\n“the drawing of inferences is an evaluative exercise, grounded in common sense. But it is not a licence for speculation: it must be anchored in the evidence. As I held in the July Judgment\n\nBaroness Lawrence v Associated Newspapers Ltd\n[2025] EWHC 1716 (KB)\n\n([46]), “drawing inferences is not a process of optimistic guesswork; it is a process whereby the court concludes that the evidence adduced enables a further inference of fact to be drawn”. Whether (and if so what) evidential significance should be attached to missing evidence or absent witnesses depends on the context and upon the totality of the evidence.”\n\n74.\n\nThe Defendants submit that in paragraphs 15(aa) and (bb) of the draft APofC, the Claimants are trying to rely on evidential inferences to create copyright ownership or exclusive licences. However, this is said to be insufficient to identify a proper cause of action because this inference is sought based on long undisturbed enjoyment and nothing more, and the Claimants have allowed inference to get ahead of the evidence.\n\n75.\n\nAs to this, it is submitted that:\n\ni)\n\nThe claim is fundamentally flawed because until the creation of the work has been established it is impossible to determine from which point any contrary claim could be asserted as to ownership or the grant of an exclusive licence.\n\nii)\n\nThe registration of a trade mark incorporating a copyright work does not establish ownership (or an exclusive licence) in the work. At best it establishes there has been no objection to registration.\nS. 5(4)\n(b)\nTMA 1994\nallows the owner of earlier rights (e.g. the copyright owner) to object to the registration of a mark, but there is no obligation on the owner of the earlier right to object (i.e. copyright is not lost or abandoned).\n\niii)\n\nThe Claimants’ plea, if accepted, would negate the need for the statutory presumptions (e.g. under\ns.104\n\nCDPA 1988\n) and so undermine the strict statutory balance created thereby. The plea would require no more than there to be long unchallenged use to establish ownership/an exclusive licence being granted (even though, in fact, the Claimants have not even established it being\n“long”\nuse as they cannot identify dates of creation). Such a plea is also flatly contradictory to the long established rules that the chain of title needs to be firmly established.\n\niv)\n\nThere is no doctrinal equivalent to adverse possession in intellectual property law which can transfer ownership over long use. Indeed, even an implied licence requires there to be words and/or conduct pleaded to support its grant - see\nRedwood Music v Chappell & Co\n\n[1982] RPC 109\nat 128.\n\nv)\n\nIt is also contrary to precedent at the highest level that long undisturbed enjoyment cannot negate an ownership claim from the real owner:\nFisher v Brooker\n\n[2009] UKHL 41\n(where the fact a musician waited 38 years before bringing a claim that he jointly owned the copyright in Whiter Shade of Pale could not preclude a claim for ownership of intellectual property rights).\n\nvi)\n\nFurther, the plea for an exclusive licence is, it is submitted, bad on its face. This is said to be because a licence can only be given to a single licensee:\nIllumina Inc v Premaitha Health plc\n\n[2017] EWHC 2930 (Pat)\nat [254] and only that licensee has the right under\ns. 101\n\nCDPA 1988\n. Accordingly, the plea that the “Claimant\ns\n” are exclusive licensees in paragraph 15(aa)(ii) of the draft APofC is bad as it suggests a grant to multiple persons (and not a single licensee). Further, any claim based on\ns. 101\nrequires the particular exclusive licensee to be identified (as well as the chain of title to that person).\n\n76.\n\nThe Defendants further submit that this aspect of the claim is based on the existence of documents and clauses in those documents (whether employment contracts, assignments or licences) that the Claimants have not identified, and in many cases which they may well not be able to find notwithstanding what appear to be the exhaustive enquiries made to date. In response to the Claimants’ contention that it is absurd to suggest that the lawyers had not turned their minds to the question of copyright ownership when the various acquisitions of the relevant businesses by the Entain Group occurred, the Defendants point out that whilst there is a presumption that ownership of trade marks will transfer with a business (see\ns. 24\n(1A)\nTMA 1994\n), there is no such presumption in the case of copyright, and an express assignment is generally required – see\ns. 90\n\nCDPA 1988\n. The Defendants say that where there is protection through the registration of trade marks, there is every reason why copyright ownership might not have been expressly given thought to in the relevant corporate transactions.\n\n77.\n\nThe Defendant suggest that, at best, long unchallenged use, as pleaded by the Claimants supports a claim that the copyright owners (whomever they may be) have acquiesced in the Claimants’ use. However, this is said to be irrelevant to the claim in that it supports neither ownership nor an exclusive licence.\n\n78.\n\nFinally, the Defendants submit that the case based on inference is entirely contradictory to the purported case built upon the presumptions. This is said to be on the basis that the Claimants can either infer the identity of the author, in which case they do not need to rely on the presumptions, or they cannot identify the author, and they can attempt to rely on the presumptions. It is submitted that is not possible to ride both horses at the same time and that they are inconsistent pleas.\n\n79.\n\nThe international origins of\ns. 104(4)\n\nCDPA 1988\nis said to make this clear. The Berne Convention for the Protection of Literary and Artistic Works, art 15(3) provides:\n\n“In the case of anonymous and pseudonymous works, other than those referred to in paragraph (I) above, the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author, and in this capacity he shall be entitled to protect and enforce the author's rights. The provisions of this paragraph\nshall cease to apply when the author reveals his identity and establishes his claim to authorship\nof the work.”\n\n80.\n\nOn this basis, so it is submitted, the Claimants’ case must either be that they have adequately pleaded the identity of the author and owner, or they cannot identify the author or owner. It cannot be both.\n\nThe Claimants’ case in response\n\nIntroduction\n\n81.\n\nI have already outlined the Claimants’ case in respect of their claim in paragraph 15 et seq above. In response to the application to strike out the copyright claim, they submit that there are three key elements to a copyright claim, namely the legal existence of the right, ownership and infringement. They submit that their case in relation thereto is sufficiently pleaded in the draft APofC, and that it is incorrect to say that the latter fails properly to disclose a cause of action of copyright infringement.\n\n82.\n\nAs I have already identified, Mr Selmi, in his submissions, placed considerable reliance upon\nLidl v Tesco HC\nand\nCA.\nThis was relied upon as being a paradigm and similar example of a claim for infringement of copyright relating to a logo relating to a well-established brand with a long history, in that case Lidl brought proceedings against Tesco in relation to a so-called\n“Mark with Text”\nfor both trade mark infringement and copyright infringement.\n\n83.\n\nMr Selmi, who appeared as counsel in that case, informed me that Lidl brought its copyright claim in relation to its current logo without pleading any case in relation to the history thereof. However, by the time that the case came to trial, there was evidence from a Mr Unterhalter to the effect that internal enquiries within Lidl had uncovered the following information that was described by Joanna Smith J in\nLidl v Tesco HC\nat [285] as follows:\n\n“(i)\n\nThe stylised Lidl text was designed in around 1972/73;\n\n(ii)\n\nAround the beginning of the 1980s a circular logo was created in the form of a yellow circle with a red border, with the Lidl stylised text superimposed\non it. In some newspaper adverts of the time (printed in black and white) this was sometimes shown in a grey/black circle instead of yellow/red;\n\n(iii)\n\nIn the late 1980s a square version of the Lidl logo was created in the form of a blue square with the circular logo and stylised Lidl text superimposed on it forming the Mark with Text. A German trade mark was applied for on 20 November 1987 in relation to the Mark with Text. The earliest record of the Mark with Text being used is a photograph of a Lidl store in France in the late 1980s or very early 1990s.\n\n(iv)\n\nIt is likely that the Works were created by employees of Lidl Stiftung who would have been German nationals.”\n\n84.\n\nAs I have identified at paragraphs 35 and 36 above, in the light of this evidence and the principles of law in relation to the correct approach regarding various iterations of an original work considered by Arnold LJ in\nLidl v Tesco\nat [44], Lidl, because it was alleging infringement of its current logo, i.e. that developed at stage 3 in the late 1980s, was constrained to limit its copyright claim to the original work representing the difference between stage 2 and stage 3. However, it succeeded in establishing its claim to copyright to this extent. As Joanna Smith J put it [289]:\n\n“Someone in the employ of Lidl took the Lidl text and the yellow circle with the red border and superimposed them on a blue background to create the Mark with Text. On balance, this is likely to have involved time, labour and creative freedom (even if the artistic quality involved is not ‘high’)”\n.\n\n85.\n\nThis finding was upheld in the Court of Appeal – see per Arnold LJ at [189] – [191]. As Arnold LJ observed at [189]:\n“the judge was correct to say that simplicity of design does not necessarily preclude originality, nor is artistic merit required.”\n\n86.\n\nWhere the Court of Appeal differed from Joanna Smith J was in relation to her finding that there had been infringement. The Court of Appeal held that there had been no infringement on the basis that, given that the copyright protection was limited to the originality at stage 3, the proper analysis was that Tesco had not reproduced\nthat\ncopyright work.\n\n87.\n\nIn\nLidl v Tesco CA\nat [103], Arnold LJ observed that\n“the only work pleaded by Lidl is the Stage 3 Work”\n. This might suggest that Lidl had specifically pleaded the difference between stage 2 and stage 3. Mr Selmi tells me that that was not the case, and that the history of the logo only came out through Mr Unterhalter’s evidence.\n\n88.\n\nMr Selmi reminded the Court that the purpose of a statement of case is to set out the facts upon which the party’s case is based, and not, generally speaking, to plead evidence. In this respect I note that CPR 16.4(1)(a) provides that particulars of claim must include:\n“a concise statement of the facts on which the claimant relies.”\n\n89.\n\nFurther, Mr Selmi reminds the Court that it ought not to strike out a claim pursuant to CPR 3.4(2)(a) or (b) unless it can be satisfied that the claim is bound to fail, see e.g.\nBegum v Maran\n(UK) Ltd\n[2021] EWCA Civ 326\n, per Coulson LJ at [20]-[22]. However, I understood Mr Selmi to have accepted that there is a distinction between the position where a claim is sought to be struck out on the basis that it is unmeritorious, and where a claim is sought to be struck out because it is alleged that the particulars of claim fail properly to disclose a cause of action, in which case it may be appropriate to strike out the claim subject to possibility of the particulars of claim being amended so as to disclose a cause of action that had some merit.\n\n90.\n\nThe Claimants’ response to the various ways in which the Defendants sought to attack the Claimants’ case as now represented by the draft APofC was as follows.\n\n(i)\n\nLack of particularity regarding the Claimants’ websites\n\n91.\n\nThe draft APofC limit the\n“Claimants’ Websites”\nsaid to be subject to copyright to\n“the website extracts shown at Annex 3(a)”.\nThe extracts in question are images taken from the Defendants’ websites of copies thereon of the Claimants’ websites. It is the Claimants’ case that their websites taken as a whole at any point in time are original artistic works, being graphic works.\n\n92.\n\nThe Claimants submit that copyright can subsist in something very simple, which might include the layout of a webpage and the content thereof. As Mr Selmi put it:\n“It is entirely plausible that creative choices have gone into all of this and my client should be allowed in the usual way to demonstrate in witness evidence the creative choices that went into the design of the websites.”\n\n93.\n\nAs to the Defendants’ point that there is difficulty in maintaining that an entire screenshot of the website can be original when the website has been developed over a period of up to 36 years, the Claimants submit that:\n\ni)\n\nGiven that the Claimants are claiming copyright in the screenshots of websites, it does not matter that the websites may have been developed over many years. That does not make the current version of the website screenshot unoriginal. It is said that, just as in\nLidl v Tesco\n, the Mark with Text was developed over more than a decade but that did not stop the stage 3 work from being original in and of itself.\n\nii)\n\nWhether what is represented by a screenshot of an entire website may be an artistic work rather or in addition to the individual components thereof may be open to argument, but this is an issue for trial and not strike out. The draft APofC contains a properly constituted claim to copyright in the websites represented by the extracts that are relied upon, and it cannot be said that a claim based thereupon is bound to fail at trial.\n\n94.\n\nWith regard to the question of ownership in the websites, Mr Selmi relied upon what was said by Ms Ashby at paragraph 39 of her witness statement, namely that the Claimants, having undertaken the further investigations earlier referred to in her witness statement, and having identified non-Claimant authors of some of the works (intra-group for the Claimants’ websites, and third parties for the Claimants’ Logos), are in the process of regularising the chain of title by way of assignments. It was submitted that, this sort of deficiency, which can be remedied, is not a proper ground for striking out the copyright claim.\n\n95.\n\nIn these circumstances, the Claimants dispute that they have not sufficiently identified subject matter or why the same is not original in the copyright sense, and that they have gone as far as necessary at this stage to identify authors and establish title. With regard to infringement, the Claimants submit that if their entitlement to copyright is otherwise established, there’s been a clear infringement by copying, which does not appear to be in issue.\n\n(ii)\n\nLack of particularity regarding copying\n\n96.\n\nThe Claimants maintain that the Defendants’ contentions are misplaced for the following reasons:\n\ni)\n\nIt is submitted that there is no requirement for a party to plead every iteration of a work and all the differences relied upon. Mr Selmi emphasises the point already made that in\nLidl v Tesco\n, Lidl just pleaded the Mark with Text as an artistic work, and it was only after the enquiries that were subsequently made that the evolution of the Mark with Text became apparent. On this point, Mr Selmi referred to the precedents for copyright in artistic works in Bullen & Leake & Jacobs (supra) relating to a sculpture and a dramatic work. He made the point that these would have been created over a period of time, yet the precedents relating thereto contained no detail with regard to the development thereof.\n\nii)\n\nMr Selmi referred to Mr Lee having, at paragraph 11 of his witness statement, referred to the\n“long and convoluted history”\nrelating to the Logos with, for example, Ladbrokes going back to 1902 and its red-and-white logo being used for many decades. Mr Selmi submitted that this was plainly evidence which the Claimants are not required to plead out. Further, he made the point that it is well settled that the Court should not strike out a pleading where further facts may emerge on discovery or otherwise.\n\niii)\n\nMr Selmi referred to the Defendants having argued that changes from previous iterations to current iterations were minor, and the suggestion that in the absence of pleading the earlier versions the Defendants could not address whether those changes allowed room for originality. However, he submitted that the Defendants would inevitably seek to minimise differences between iterations, and that all this demonstrated was that originality was a live issue for trial, in respect of which the issues would be identified by disclosure and/or the evidence. Mr Selmi pointed again to\nLidl v Tesco\n, suggesting that the issues therein were simply whether copyright subsisted in the logos, whether copyright was owned by Lidl, and whether it had been infringed. He submitted that that is all that needs to be got from the pleaded case and that, as he put it,\n“the rest can be done through the evidence, the submissions and arguments at trial, and cross-examination.”\n\niv)\n\nMr Selmi submitted that the Claimants are not unique in having very large brands with convoluted histories. He submitted that the Defendants’ approach was one that was simply not mandated by copyright law and court procedure, and that the effect of accepting it would be to accept that large companies should be precluded from asserting copyright infringement unless they had undertaken a full disclosure exercise upfront or had all the evidence that would be available at trial available and ready to go before asserting copyright through proceedings. All that he said that his clients were seeking to do was to assert copyright in the brands that they are known by, the brands that they use day in day out, and which they and only they have used or laid claim to because exact copies of their logos and websites were appearing on the Defendants’ websites.\n\n(iii)\n\nLack of particularity regarding creative choices\n\n97.\n\nThe Claimants’ case in relation to this alleged deficiency is essentially the same as that in relation to the Defendants’ contention that it is necessary to plead out iterations of a logo where various versions thereof have been produced over time, the ultimate issue being whether the current iteration in itself involves sufficient time, labour and creative freedom, recognising that the artistic quality involved need not be high. Does this all need to be pleaded out, or does one just identify in the pleading the artistic work in question, in the present case the current iteration of the various Claimants’ Logos, just as in in\nLidl v Tesco\nall that was pleaded was Lidl’s current iteration, the Mark with Text?\n\n98.\n\nConsequently, what are essentially the same arguments as those set out in paragraph 96 above are relied upon in answering this point. So far as the European authorities relied upon by the Defendants referred to in paragraphs 34 and 43 above are concerned, the Claimants make the point that whilst these cases might provide persuasive authority as to what ultimately needs to be established at trial, they provide no authority as to what is required from a pleading perspective under English law.\n\n(iv)\n\nNo identification of first publication or authorship\n\n99.\n\nThe Claimants refer to the terms of\ns. 154\nand\ns. 155\n\nCDPA 1988\n, and make the point that the qualification provided for thereby, whilst expressed as extending to UK individuals and to publication in the UK, is also expressed as extending to individuals in other countries, and to work published in other countries listed in s. 159 CDPA 1988, i.e. to countries that are signatories to the Berne Convention or that are members of the World Trade Organisation. The practical effect of this is to apply the relevant provisions to as many as 166 counties in the case of the World Trade Organisation and 182 contracting parties in the case of the Berne Convention in circumstances in which there are very few countries that are not signatories to one or both thereof, e.g. Angola, Sierra Leone, Iraq and some smaller islands.\n\n100.\n\nThe Claimants submit that by paragraph 15(c) of the draft APofC, they plead, factually, all that is required to meet one or both of the qualification tests, and by making reference to\n“qualifying persons”\nor to qualifying for UK copyright protection by reference to country of first publication, they are asserting that the qualification tests are met in accordance with the requirements of\ns. 154(1)\nor (2), or in accordance with\ns. 155(1)\nor (2).\n\n101.\n\nThe Claimants submit that it is unnecessary to identify the name or names of the authors, or the date and place of first publication, making the point that this was not, they submit, required in\nLidl v Tesco\n.\n\n(v)\n\nand (vii)\nNo particularisation of chain of title/ownership/exclusive licence claimed by inference\n\n102.\n\nThe Claimants submit that the issues of chain of title, and ownership ultimately require to be addressed\n“compendiously”\n.\n\n103.\n\nThe Claimants accept that the evidence is to the effect that certain Logos were not developed by their own employees, and that the bwin, Ladbrokes and Sportingbet logos were developed by third party agencies, in the case of bwin in Austria, and in the case of Sportingbet in Brazil, rather than employees of the Claimants. Further, it is recognised that, within the Entain Group, ownership of copyright may currently sit with companies other than the relevant Claimant now seeking to assert copyright through the present proceedings in respect of the respective Logos. However, they say that steps are being taken to regularise matters within the Entain Group so as to ensure that assignments are executed ensuring that title is vested in the appropriate Claimants – see paragraph 39 of Ms Ashby’s witness statement.\n\n104.\n\nThe Claimants submit that it is unnecessary to plead each and every step in a chain of title, and that, ultimately, the question is whether ownership can be proved at trial. It is said that it was not necessary to plead the full chain of title in\nLidl v Tesco\n, and, in that case, Mr Unterhalter’s evidence was that the logos were created by employees of Lidl Stiftung. It is said that the Claimants’ case in the present case is pleaded in much the same way.\n\n105.\n\nMr Selmi referred to the Defendants having identified that the Claimants’ claim to ownership or to an exclusive licence was based upon the fact that the relevant Claimant had enjoyed exclusive use of the work for many years, and that no third-party had asserted a competing claim, and having then gone on to assert that, it was an unsupportable leap of logic to say that these two factors meant the relevant claimant owned the copyright or was an exclusive licensee in respect of the work. However, Mr Selmi identified that the Defendants, at paragraph 14 of their Skeleton Argument, had then said that, at its highest, the inference sought to be drawn by the Claimants was\n“merely consistent with ownership. However, those facts are also consistent with the opposite conclusion”\n. Mr Selmi made the point that if, as the Defendants appear to accept, the two factors are at least consistent with ownership, then there is absolutely no basis for striking out the pleading.\n\n106.\n\nIn response to the Defendants’ suggestion (described by the Claimants as bizarre) that ownership of copyright might still rest with brand agencies or non-claimant companies, and in support of their case that ownership or the benefit of an exclusive licence is to be inferred, the Claimants refer to a passage in Bullen, Leake and Jacobs (supra) at 75-06, where the authors thereof observed that:\n“There is no express provision vesting the copyright in a commissioned work in the commissioner, although that may be an express or implied term of the contract of commission.”\nThe relevant footnote cites\nRobin Ray v Classic FM\n\n[1998] FSR 622\nat 640-644, as authority for this proposition, and there is further discussion with regard to the possibility, in appropriate cases, of implying an assignment. It is submitted by Mr Selmi that this is exactly the situation in the present case, and that the pleaded facts are entirely consistent with ownership, alternatively with there being an exclusive licensee.\n\n107.\n\nIn short, it is the Claimants’ case that ownership is sufficiently pleaded, and not susceptible to strike out.\n\n(vi)\n\nNon application of the presumptions\n\n108.\n\nThe Claimants’ primary case is that they do not need to rely upon the presumptions provided for by\nss. 104(4)\nand (5)\nCDPA 1988\n.\n\n109.\n\nWith regard to\ns. 104(4)\n, the Claimants’ argument is along the following lines. The Logos qualified for copyright protection by reference to country of first publication for the reasons referred to above. No author’s name appears on the Logos, the names that do appear are the names of the brands themselves, e.g. Ladbrokes or Coral. These brands are the publisher, being the person that has made the Logos public by using them. Furthermore, most of the Logos are also registered trade marks owned in each case by one of the other companies within the Entain Group. The Claimants submit that, in these circumstances, the presumption at under\ns.104\nis operative, absent evidence to rebut it.\n\n110.\n\nWith regard to\ns. 104(5)\n, the Claimants’ argument is that, following further reasonable enquiry, they intend to adduce evidence at trial along the lines of that of Mr Unterhalter’s evidence in\nLidl v Tesco\n. However, they cannot undertake that reasonable enquiry if their pleading is struck out. In carrying out this enquiry, the Claimants will endeavour to bottom out the first publication of the logos relied upon and the country of first publication entitling them to the presumption in their favour under\ns. 104(5)\n.\n\n111.\n\nIn short, the Claimants submit that, so far as may be necessary contrary to their primary case, they can pray in aid the presumptions in order to save their case.\n\nDetermination of the Defendants’ Application\n\nPreliminary observations\n\n112.\n\nCPR 16.4(1)(a) provides that particulars of claim must contain\n“a concise statement of the facts on which the claimant relies.”\nThe notes in the White Book 2026 at 16.4.1 note that:\n“the primary function of the particulars of claim is to state concisely the facts on which the claimant relies … The claimant should state all the facts necessary for the purposes of formulating a complete cause of action.”\n\n113.\n\nThese observations reflect that the ultimate purpose of particulars of claim is to inform the defendant(s) of the case against them. The authorities indicate that the fact that particulars of claim leave the precise ambit or extent of the relief sought to argument does not necessarily justify striking out a statement of case provided that the basic allegations are sufficiently clear – see e.g.\nConticorp SA v Central Bank of Ecuador\n[2007] UKPC 40\n.\n\n114.\n\nThe Chancery Guide (2025 revision) at paragraph 4.7, citing\nKing v Stiefe\n[2021] EWHC 1045 (Comm)\nat [145] per Cockerill J (as she then was), refers to a statement of case as serving three functions or purposes:\n\ni)\n\nto enable the other side to know the case that it has to meet;\n\nii)\n\nto ensure the parties can properly prepare for trial and that unnecessary costs are not expended, and court time required chasing points which are not in issue or which lead nowhere; and\n\niii)\n\nin its preparation, operating as a critical audit for the claimant or defendant and their respective legal teams that they have a complete cause of action or defence.\n\n115.\n\nIn\nPrudential Assurance Co Ltd v HMRC\n\n[2016] EWCA Civ 376\nat [20], Lewison LJ, addressing the first two of the above functions, commented that:\n“the setting out of a party’s case in a statement of case enables the other party to know what points are in issue, which documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should not be exposed to issues and arguments of which he has no fair warning.”\n\n116.\n\nDespite saying that they have made extensive further enquiries that they describe as\n“reasonable enquiries”\n, the results of which are reflected in the draft APofC, the Reply and Ms Ashby’s witness statement, the Claimants say that they propose to fill gaps that the Defendants have identified in the Claimants’ case by evidence served in due course. In his Skeleton Argument, Mr Selmi, at paragraph 85(a) says that in relation to copyright subsistence and ownership:\n“Cs intend to prove subsistence and ownership of copyright in Cs’ logos and Cs’ websites by way of witness evidence rather than disclosure. Ds do not agree to this, and require Cs to disclose under Model D.”\n\n117.\n\nMr Selmi complains that the Defendants’ approach, if correct, means that a big company with a long established brand will typically find it difficult, if not impossible, to pursue a claim in copyright in its logo if required to show a full chain of title etc. going back over many years, and to particularise the full history of the development of the logo. This may be right, but it cannot, as I see it, justify a departure from the general principles regarding the purpose and contents of a statement of case that I have identified, including, in the case of particulars of claim, enabling the defendant to identify and address the case that they are required to meet. Further, it is to be borne in mind that the big company with a long established brand with a logo has other ways of protecting the intellectual property therein through the registration of a trade mark pursuant to the\nTMA 1994\n. This ought generally to be an effective way of protecting brands and logos, albeit subject to specific defences provided for by the TMA 1994 such as the referential use defence under\ns 11(2)\n(c) thereof that the Defendants seek to rely upon in the present case.\n\n118.\n\nImportantly on this question of the difficulties that may be encountered by a large company with a long established logo, it is not being said that the Claimants are unable to come up with further, sufficient detail in respect of their claim. Rather it is being said that this is not the time to provide such detail, the intention being that the detail will be provided in narrative form by way of evidence in due course, without there having been any form of extended disclosure on their part of documentation going to the relevant issues. This is not, I consider, an attractive submission from parties who might reasonably be assumed to have the resources to carry out urgent and detailed further enquiries now to produce the requisite detail to support their case. Ordinarily one might have expected these steps to have been taken before a copyright claim was even commenced.\n\n119.\n\nDespite Mr Selmi’s involvement as Counsel in\nLidl v Tesco\n, I consider that one needs to be careful before reading across to the present case too much about the way that that case was pleaded, particularly without having seen the statements of case in that case and knowing rather more about the circumstances in which the dispute between the parties in that case arose. The\nLidl v Tesco\ncase did not involve multiple claimant companies bringing copyright infringement claims in respect of multiple logos, and where the issue was whether the most recent iteration of Lidl’s logo was copied by a sign used by Tesco:\n\n120.\n\nFurther, although in\nLidl v Tesco\nit may only have been confirmed late in the day through Mr Unterhalter’s evidence that Lidl’s logo was likely to have been devised by Lidl Stiftung’s employees, something that was not challenged by Tesco, there is no suggestion that there was, at the case management hearing stage of that claim, evidence available to the effect that any logo had been devised by a third party agency (including one based overseas) or that there was evidence that the claimant plainly did not then own the copyright and that an assignment, at least, would be required to confer title on Lidl.\n\n121.\n\nI accept that there is force in the point made by Mr Selmi that where the copyright infringement complained of is the use by the defendant of a like for like copy of the current iteration of a claimant’s logo, then provided that there is at least some originality in the most recent iteration, however minor the latest revision, then infringement ought not to be too difficult to prove in that the copy will inevitably include that revision.\n\n122.\n\nFurther, I accept that Bullen & Leake & Jacobs (supra) at 75-08 correctly identifies that particulars of claim in a copyright claim must include, amongst other things, the following allegations, namely:\n\ni)\n\nthe title of the claimant to sue, i.e. as owner or exclusive licensee; and\n\nii)\n\nthe subsistence of copyright in the work, which must be identified with precision.\n\n123.\n\nI do not accept the comparison that Mr Selmi seeks to draw between the development of a logo over a period of time through various iterations and a sculpture or a literary or dramatic work. His point was that the latter would have been developed over a period of time, yet the precedents provided in Bullen & Leake and Jacobs do not say anything about the development thereof and simply describe the work as being e.g.\n“an original artistic work consisting of a sculpture known as …”\n. However, the development of a sculpture over a period of time or a literary work is, I consider, of a different order and a different process from successive publications of various iterations of a logo where each iteration requires separate consideration with regard to originality etc. This is, as I see it, no proper comparison to a partially completed sculpture, or a partially written book.\n\n124.\n\nI am satisfied that if particulars of claim do fail to state all facts necessary for the purposes of founding a complete cause of action, or fail to plead sufficiently to enable the other side to know the case that they have to meet, and to properly prepare for trial, then the Court plainly does have a discretion pursuant to CPR 3.4(2)(a), (b), and/or (c) to strike out the particulars of claim, or to order that the particulars of claim be struck out unless the defect or defects are remedied.\n\n125.\n\nI propose to consider the deficiencies complained of by the Defendants by reference to the matters that Bullen & Leake & Jacobs (supra) at 75-08 identify as being required to be included in particulars of claim in a copyright case.\n\nTitle of the Claimants to sue, i.e. as owner or exclusive licensee\n\n126.\n\nThis essentially covers the\n“no particularisation of chain of title”\n,\n“non-application of presumptions”\nand\n“ownership/exclusive licence claimed by inference”\nheads identified in the Defendants’ submissions.\n\n127.\n\nThe relevant plea as to ownership of copyright is contained in paragraph 15(aa) of the draft APofC. The central plea in this paragraph is that it is:\n“reasonably inferred that the Claimants own the copyright in the said logos for the following reasons …”\n. To my mind this paragraph is deficient and objectionable as a pleading because it does not seek to address what ought to be pleaded, namely that a particular Claimant, or possibly particular Claimants jointly, own the copyright in particular logos. As pleaded, there is simply a plea that the Claimants between them own all the logos, and that that is to be inferred from the facts that follow. Consequently, even if it were right to infer that which the Claimants invite the Court to infer, that does not serve to demonstrate that any particular Claimant has a good cause of action in relation to any particular logo. I was not referred to any authority to suggest that it might be appropriate to take a collective approach between claimants in advancing an infringement of copyright case without specifying which of them owns the copyright in the artistic work in question.\n\n128.\n\nWith regard to the matters alleged in sub-paragraphs 15(aa)(i)(A)-(D) concerning inferring ownership of copyright, there are, as I see it, the following principal difficulties therewith:\n\ni)\n\nWith regard to sub-paragraph (A), it is pleaded that pursuant to the various acquisitions under which the various brands were acquired by the Entain Group, copyright would have been transferred to\n“the Entain Group and the Claimants”\n. However, a transfer to\n“the Entain Group”\nwould not have conferred ownership on any of the Claimants, unless the transfer was to one or more of them, and reference to a transfer to\n“the Claimants”\ndoes not assist with regard to transfer to any particular Claimant of any particular logo. Further, the mere fact that the\n“Entain Group and/or the Claimants”\nmight have acquired the relevant brands does not necessarily mean that that copyright in any Logo was transferred to any particular Claimant given that a transfer of a business will not, generally speaking, lead to the assignment of copyright owned thereby unless the subject matter of an express assignment – see\ns. 90\n\nCDPA 1988\n. There is, I consider, much force in the Defendants’ point that it cannot be assumed that in relation to the various acquisitions, specific thought was given to the assignment of copyright, particularly given the existence of the Trade Marks. In any event, with their resources, it ought not be too difficult for the Claimants to dig out the various acquisition agreements entered into when the seven brands in question were respectively acquired, and check the position. If there was no express assignment, then reference to the acquisitions in question cannot, in itself, be of assistance to the Claimants. However, if there was an express assignment, then that ought to identify who the assignment was to, and the Claimants ought to be able to rely upon it.\n\nii)\n\nWith regard to sub-paragraph (B), I agree with the Defendants’ contention that ownership of a registered trade mark in a particular logo is of limited value in determining ownership of copyright in the logo bearing in mind that the former is determined by registration and the latter, primarily, by authorship, and also bearing in mind that, unlike the position in relation to registered trade marks, on acquiring a brand, an express assignment of copyright would have been required. Further, the fact that a registered trade mark might belong to\n“one of the Claimants or another company within the Entain Group”\ndoes not assist in showing that any particular Claimant has title to sue for copyright infringement.\n\niii)\n\nWith regard to sub-paragraph (C), use of the Logos for many years does not, as I see it, add to the case that it is to be inferred that unspecified Claimants or other Entain Group entities own and have title to the copyright in the Logos. Use may be consistent with ownership of copyright, but it is really no more than that and, as the Defendants have pointed out by reference to\nFisher v Brooker\n(supra), long user does not defeat the ownership of another. Further, again, the emphasis of the inference that it is alleged is to be drawn is upon\n“dealings with the works”\nby the Entain Group and the Claimants rather than the dealings by a particular Claimant with a particular logo or logos, which would be pertinent.\n\niv)\n\nWith regard to the concluding sub-paragraph (D), I consider that, as matters stand, there are difficulties with the averment that, in the premises,\n“it is reasonably inferred that the Claimants own the copyright in each of the Logos”\n. In particular:\n\na)\n\nThe contention is that\n“the Claimants”\nown the copyright in each of the Logos, rather than that any particular Claimant or Claimants own the copyright in a particular logo.\n\nb)\n\nOnce the Claimants have accepted, as Ms Ashby has in her witness statement, that assignments are required to be executed by companies within the Entain Group in order to perfect ownership of copyright in one or more of the Claimants, then the averment that\n“it is reasonably inferred that the Claimants own the copyright in each of the Logos”\ncannot be right.\n\nc)\n\nSub-paragraph 15(aa)(i) does not engage with the point that certain Logos were devised by third party agencies, in a number of instances based overseas.\n\nd)\n\nWhilst it may be that, suitably explained, ownership of a particular Logo by the disposing entity at the time that the relevant brand was acquired by the Entain Group might be capable of being inferred, I consider that it must be incumbent upon the relevant Claimant claiming ownership of copyright in a particular Logo to explain how it is alleged that it became owner of copyright therein consequential thereupon bearing in mind that such information ought to be within the records and knowledge of Entain Group.\n\n129.\n\nSub-paragraph 15(aa)(ii) deals with the position if and to the extent that copyright in one or more Logos is held by another person and is not owned by the Claimants, pleading, essentially, that, in these circumstances, an exclusive licence in favour of\n“the Claimants”\nis to be inferred. There are, I consider, a number of difficulties with this, including in particular that:\n\ni)\n\nThe pleading does not, again, identify which of the Claimants is the exclusive licensee in respect of which Logo or Logos.\n\nii)\n\nI agree with the Defendants’ submission that a plea as to entitlement to an exclusive licence in circumstances such as the present case requires the identification of, or at least a properly pleaded case as to the ownership of the copyright out of which the exclusive licence is said to have been granted, expressly or by implication. This is, essentially, for two reasons. Firstly, it is unlikely to be possible to properly plead the basis for an exclusive licence without explaining the basis upon which the exclusive licence is said to have been granted. This would almost certainly, as I see it, require an understanding of how the copyright is owned, and by whom. Secondly, because there is authority to the effect that a claim for infringement of copyright by an exclusive licensee requires the joinder of the copyright owner as either claimant or defendant – see the authorities referred to in paragraph 64 above.\n\niii)\n\nSub-paragraphs 15(bb)(i) and (ii) advance similar contentions with regard to inferring ownership or the grant of an exclusive licence in respect of copyright in the Claimants’ websites. Somewhat similar difficulties arise, in a situation where the website layouts appear to have been devised, by and large, by persons other than employees of the Claimant owning copyright in the relevant website. It is plain that, as matters stand, no individual Claimant has sought to articulate a case of ownership of any websites represented by the screenshots that are relied upon by the Claimants, with Ms Ashby explaining that assignments are being obtained from the appropriate parties, without providing any real particulars as to what this involves. Indeed, although the screenshots that are relied upon by the Claimants have been identified, and these identify the particular brands in respect of which it is alleged that there has been infringement of the copyright in the Logo relating thereto, there is a lack of clarity as to which Claimant claims ownership of, or an exclusive licence to which particular website.\n\n130.\n\nWith regard to sub-paragraph 15(d) of the draft APofC, and the Claimants’ reliance upon the statutory presumptions in\ns. 104(4)\nand\ns. 104(5)\n\nCDPA 1988\n, the difficulty with this plea is that it is inconsistent with the plea as to ownership or exclusive licence based upon inference, and, more fundamentally, no particulars are provided as the basis upon which it is said that the statutory presumptions apply. Mr Selmi did, as referred to in paragraphs 109 and 110 above, seek to explain how the presumptions are said to work in the present case, but no particulars are provided in the draft APofC. As to the arguments advanced by Mr Selmi:\n\ni)\n\nThe argument advanced in relation to\ns. 104(4)\ncannot, as I see it, really assist the Claimants unless the Claimants can, in respect of the respective Logos, identify when the work that they claim ownership of copyright in respect of was first published. Without that information, one cannot know who the publisher was at the date of first publication even if it can be shown that a name purporting to be that of the publisher appeared on copies of the work as first published. If one does not know who the publisher was at that time, then it cannot be said how the presumption assists the Claimants, or any of them.\n\nii)\n\nAs to the argument advanced in relation to\ns. 104(5)\n, it must, I consider, be incumbent upon the Claimants to actually set out in their Particulars of Claim make a properly reasoned case as to when the first publication of the work in respect of which copyright protection is sought occurred. The Claimants complain that if the Particulars of Claim are struck out, then they will not be able to carry out the enquiries required in order to set out their case in support of the presumption. However, I consider that such information is required before the plea can properly be made.\n\n131.\n\nIn conclusion, in relation to the question of ownership or exclusive licence, and the requirement of a claimant to plead the title to sue, i.e. as owner or exclusive licensee, for infringement of copyright, I consider that, in light of the various difficulties that I have identified, the draft APofC fall well short of pleading a proper case as to title to sue. This is because paragraphs 15(aa), (bb) and (d) thereof do not, I consider, state all the facts necessary for the purposes of formulating a complete cause of action and, in any event, do not plead sufficient facts to enable the Defendants to understand the Claimants’ case and respond properly thereto.\n\n132.\n\nI do not consider that it can be appropriate for claimants, as late in the day as the case management conference in a case and after the proceedings have been on foot for some 11 months or so, to say that they are in the process of obtaining the requisite assignments without explaining why this could not have been done before now and without providing any real detail as to what is being done. Further, I do not consider it satisfactory to say that further enquiries will be carried out with regard to matters such as first publication etc., without first explaining why this could not have been done before now.\n\n133.\n\nIn the circumstances, I consider that the only proper course is to strike out the Particulars of Claim on this title/ownership ground alone, subject to giving the Claimants the opportunity to serve revised Particulars of Claim addressing the issues that I have identified if this can be accomplished within a comparatively limited period of time.\n\nPleading of subsistence of copyright, and identification of the work with precision\n\n134.\n\nThe first issue raised by the Defendants is an alleged lack of clarity regarding the Claimants’ websites. Clearly, if copyright is to be considered by reference to its component parts as contended by the Defendants, then there is an issue in that there is no plea in relation thereto. However, as I have explained, the Claimants’ case is that the websites taken as a whole at any point in time are original artistic (graphic) works, and that what copyright is being claimed over is the website as represented by the screenshots shown in Annex 3(a) to the draft APofC. There is, I consider, at least a real prospect of the Claimants establishing at trial that there can be copyright in a website taken as a whole at any point in time, and to this extent there is, I consider, certainty as to what copyright is being claimed over.\n\n135.\n\nFurther, in the Claimants’ favour is the point that given that what is complained of is an exact copy of the websites in which the Claimants claim copyright, there would not need to be a great deal of originality in the latest iteration of the website for the copy to infringe.\n\n136.\n\nI have considered the Defendants further points referred to in paragraph 33 above. However, I consider that there is at least a maintainable case that what appears on the relevant Defendant’s website is a copy of the relevant Claiamnt’s website and so the screenshot represents how the relevant has infringed by copying. I do not understand the Claimants to be claiming copyright in the screenshots themselves or that the Defendants have copied the latter, but this is something that should be clarified in any amended Particulars of Claim.\n\n137.\n\nHowever, apart from the fact that authorship/ownership of copyright in the Claimants’ websites by the relevant Claimant claiming to have copyright therein is yet, for the reasons that I have explained above, to be properly pleaded, I am concerned that there is no proper plea as to what is said to be original in the Claimants’ websites.\n\n138.\n\nParagraph 15(a) of the draft APofC pleads in general terms that the Claimants’ websites are original works\n“in that they are not copied from other graphic works and are an expression of their authors’ own intellectual creations, reflecting their personalities, as an expression of their free and creative choices so as to stamp the works with their personal touch.”\nHowever, one would have thought that each refreshed version of the website will substantially be a copy of the last version, albeit with the potential, if nothing more, for some originality in the refreshed version.\n\n139.\n\nIn circumstances such as the present, I consider that properly pleaded particulars of claim alleging infringement of copyright by the copying of a website not only need to explain how the particular claimant claiming copyright has come to have ownership of the copyright, e.g. because it was created by its employee(s) or it has taken an assignment thereof, but also need to explain the factual basis for the assertion that it is an original artistic (graphic) work other than by recitation of the statutory formula. Otherwise, it is difficult to see that the Particulars of Claim (even in the form of the draft APofC) have, in this respect, fulfilled their necessary function of stating all facts necessary for the purposes of formulating a complete cause of action, and enabling the defendant to know the case that it has to meet.\n\n140.\n\nParagraph 15(a) of the draft APofC fails to do this so far as the Claimants’ websites are concerned.\n\n141.\n\nThis leads on to the Defendants’ contentions concerning an alleged lack of particularity regarding copying, and regarding creative choices, which I consider can conveniently be considered together.\n\n142.\n\nI take Mr Selmi’s point regarding how\nLidl v Tesco\nmight have been pleaded but, as I have explained, the position in that case was very much simpler, with only one claimant, one logo under consideration, and no real issue so far as ownership of the copyright. Each case must, as I see it, be considered on its own facts.\n\n143.\n\nThe position in the present case is that it is pleaded in paragraph 15(a) of the draft APofC that the Logos are all original works on the basis, again, that\n“they are not copied from other graphic works and are an expression of their authors’ own intellectual creations, reflecting their personalities, as an expression of their free and creative choices so as to stamp the works with their personal touch.”\n\n144.\n\nHowever, it had been pleaded in the original paragraph 15(b) that it is now proposed to delete that the Logos were originally created by teams of employees of the Claimants and were subsequently added to by other teams of employees of the Claimants, in all cases acting in the course of their employment. This was relied upon in support of the averment that the Claimants own copyright in all iterations of the Logos. This pleading no doubt had in mind the point highlighted in\nLidl v Tesco\nby Arnold LJ at [44] regarding the development of various versions or iterations of a logo and sought to provide a cogent factual basis for asserting that copyright was owned by the Claimants because they had been created by their employees who brought their labour and creative choices thereto.\n\n145.\n\nNotwithstanding that the original Particulars of Claim contained a statement of truth, the Claimants are unable to maintain their claim that all iterations of all the Logos were the product of their employees, hence the amendments made by the introduction of the new sub-paragraphs 15(aa) and (bb), and the amendments to sub-paragraphs 15(c) and (d). The difficulty is that, in a context where it remains wholly unclear from the pleaded case who the authors were of the various iterations of the various logos, it becomes all the more important to know whether and to what extent the current versions of the Logos the subject matter of the present claim are copied from earlier versions. In addition, it becomes difficult in these circumstances to maintain the plea in paragraph 15(a) that the Logos are not copied from other graphic works, i.e. earlier iterations of the Logos.\n\n146.\n\nConsequently, in order to fulfil the function of stating all facts necessary for the purposes of formulating a complete cause of action, and in any event for the purpose of enabling the defendant to know the case that it has to meet, I consider that in respect of each of the Logos, and in conjunction with a proper plea as to ownership of copyright or exclusive licence, it needs to be explained what original features in the Logo reflecting the expression of the authors’ own intellectual creations etc. support the claim to the copyright alleged to have been infringed.\n\n147.\n\nGiven that paragraph 15 of the draft APofC does not do this, this does, I consider, provide a further proper basis for striking out the copyright allegations in the Particulars of Claim pursuant to CPR 3.4(2)(a), (b) or (c).\n\n148.\n\nI am not persuaded that the Defendants’ complaints regarding the plea concerning qualification for UK copyright protection under\ns. 154\nand/or\ns. 155\n\nCDPA 1988\ntake matters much further. There is a cogent argument that a plea in relation thereto ought at least to specify the date and place of first publication. However, even if this is right, any deficiencies are liable to be remedied if the other deficiencies in the pleading that I have identified are remedied.\n\n149.\n\nOn its own, paragraph 15(c) of the draft APofC does plead the essential requirements of\ns. 154\nand\ns. 155\n\nCDPA 1988\n, and the reality is that the overwhelming likelihood is that the relevant author was a qualifying person and that the Logos were each first published in the UK or in another qualifying jurisdiction notwithstanding the evidence that a number of the Logos were developed outside the UK.\n\nOverall conclusion in respect of the Defendants’ Application\n\n150.\n\nI consider that the pleaded allegations in respect of copyright contained in paragraph 15 of the draft APofC do, to the extent that I have indicated above, fail to fulfil the function of stating all facts necessary for the purposes of formulating a complete cause of action and, further and in any event, fail to state all facts necessary for the purpose of enabling the Defendants to know the case that they have to meet.\n\n151.\n\nIn the circumstances, I consider that the appropriate course is to accede to the Defendants’ application and strike out the infringement of copyright allegations in the Particulars of Claim. However, provided that the defects that I have identified can be remedied within reasonably short order, I would be minded to provide that the strike out of these allegations should only take effect if the Claimants fail to file and serve corrective and compliant amended Particulars of Claim within a prescribed period of time.\n\nThe Claimants’ Application\n\nIntroduction\n\n152.\n\nThe Claimants apply, pursuant to CPR 3.4(a), (b) and/or (c) to strike out the following paragraphs of the Defence and Counterclaim:\n\ni)\n\nParagraphs 2 to 26 and cross-references thereto in the body of the Defence at paragraphs 58(e), 72, 73(c) and 77, on the basis that they consist of generalised, irrelevant and/or inadmissible submissions;\n\nii)\n\nParagraph 62(a), the reference to a likelihood of confusion in paragraph 64(b), and the reference to\ns. 10(2)\n\nTMA 1994\nin the preamble to paragraph 65, on the basis that there is no pleaded allegation of confusion, nor of damage to the origin function of the trade marks in question; and\n\niii)\n\nParagraphs 91-93, because there is no procedural or substantive basis for the conditional pleading to be found therein in relation to liability for revocation of two trade marks (the Newer Marks) which are still within their grace period, but where the grace period will, subject to use being made of the marks in the meantime, come to an end in February and June next year.\n\n153.\n\nI will deal with each of these heads in turn.\n\nParagraphs 2 to 26 – the introductory narrative\n\n154.\n\nThese paragraphs contain introductory narrative in respect of both the trade mark claim (paragraphs 2-10) and the copyright claim (paragraphs 11-26). The Claimants’ essential complaint is that the paragraphs in question consist of generalised, irrelevant and/or inadmissible submission, and are neither required nor appropriate for a pleading. In his submissions, Mr Selmi described the paragraphs in question as reading more like a press release for the Defendants, or the beginning of a skeleton argument, than a pleading, and he submitted that it is objectionable that the paragraphs in question do not engage with the allegations contained in specific paragraphs of the Particulars of Claim.\n\n155.\n\nGiven that the Particulars of Claim are, in respect of the copyright claim, liable to be struck out unless a corrective amended version is served, it is plainly necessary to deal with the paragraphs that relate to the trade mark claim separately from the paragraphs that relate to the copyright claim, which can now be dealt with very much more briefly than would otherwise have been the case.\n\n156.\n\nSo far as paragraphs 2 to 10 of the Defence and Counterclaim dealing with the trade mark claim are concerned, I am not persuaded that the case has been made for striking them out.\n\n157.\n\nI do not consider that CPR 16.5(1), which requires that a defence\n“must deal with every allegation in the particulars of claim”\n, mandates that it should do so exclusively on a paragraph by paragraph basis. In appropriate cases it may be helpful to have an overall summary of a party’s position before the party deals in detail with the other party’s case.\n\n158.\n\nI note that the paragraphs dealing with the trade mark claim are relatively short and the Claimants have not sought to suggest that they raise any unsustainable points of law that should be struck out. Mr Selmi correctly identified that there is a danger in the use of introductory paragraphs such as this given the possibility of inconsistency between the same and the way that the case is advanced in the paragraphs specifically responding to the allegations contained in the particulars of claim. However, no case was advanced that there was any such inconsistency concerning the paragraphs in question.\n\n159.\n\nIn these circumstances, I do not consider it appropriate to exercise my discretion in favour of striking out the relevant paragraphs.\n\n160.\n\nWith regard to the introductory paragraphs 11 to 26 of the Defence and Counterclaim dealing with the copyright claim, the position is very different.\n\n161.\n\nOn the basis of my finding above, the copyright claim will be struck out unless the Claimants can provide compliant Particulars of Claim. If compliant Particulars of Claim are served, then the Defendants will have to re-plead to the relevant allegations, and a number of the points advanced in paragraphs 11 et seq of the Defence and Counterclaim will become otiose, in particular, a number of the points made in paragraphs 11 to 13.\n\n162.\n\nHowever, it is fair to say that had I reached a different conclusion in respect of the Defendants’ Application to strike out the Claimants’ copyright claim, then I would have been minded to strike out paragraphs 14 to 26 of the Defence and Counterclaim for the following reasons:\n\ni)\n\nThe fair dealing defence mentioned in paragraph 14 does not provide any particulars with regard to the basis upon which this defence is advanced. In the course of submissions, Mr Johnson mentioned\ns.30\n(1Za)\nCDPA 1988\n, the defence of fair dealing by quotation. However, if this is to be a defence that is advanced in response to any compliant version of the Particulars of Claim, then I consider that this needs to be properly explained and particularised, and that it is more appropriately dealt with responding to particular allegations contained in any compliant version of the Particulars of Claim rather than within introductory paragraphs.\n\nii)\n\nWith regard to the defences of abuse of rights (paragraphs 15 to 19), freedom of expression (paragraphs 21 to 23), and the effect of the\nRetained EU Law (Revocation and Reform) Act 2023\n(paragraphs 24 to 26), the allegations amount to little more than bare assertion unrelated to the particular facts of the present case and which are not developed in specific response to the allegations contained in the relevant paragraphs of the Particulars of Claim. I can see that there may be difficulty with these lines of defence, noting, so far as the abuse of rights defence is concerned, that neither Joanna Smith J or the Court of Appeal in\nLidl v Tesco\nexpressed any difficulty with concurrent claims of infringement of trade mark and infringement of copyright\n.\nHowever, this would not be the right occasion to go into the merits of these particular lines of defence given that they may be academic, and that I only heard limited argument thereupon. However, if they are to be relied upon in any Defence to corrective Particulars of Claim, then I consider they should be pleaded in specific response to the relevant paragraphs thereof rather than by way of opening introduction.\n\nParagraph 62(a), the reference to a likelihood of confusion in paragraph 64(b), and the reference to\ns. 10(2)\n\nTMA 1994\nin the preamble to paragraph 65\n\n163.\n\nThe basis of the Claimants’ complaint in relation to these paragraphs is that they plead to allegations of confusion when there is no pleaded allegation of confusion in the case, nor of damage to the origin function of the Trade Marks.\n\n164.\n\nThe Defendants accept that the reference to\ns. 10(2)\n\nTMA 1994\nin the preamble to paragraph 65 of the Defence and Counterclaim can only be relevant to an allegation of confusion, but they say that this was a mistake, and they readily accept that this reference to\ns.10(2)\nshould be struck out.\n\n165.\n\nHowever, the Defendants’ case is that apart from this reference to\ns. 10(2)\n, the Defence was not intended to and does not plead to an allegation of confusion. Rather, they submit that confusion can be material in relation to other aspects of infringement and that they plead to the question of confusion for this reason.\n\n166.\n\nIn relation thereto, they submit as follows:\n\ni)\n\nIt is well-established that a claimant’s mark is not infringed where the defendant’s mark does not affect the essential function of the mark, namely the origin function, such as through long-standing honest concurrent use – see C-482/09\nBudějovický Budvar v Anheuser-Busch\n, EU:C:2011:605. Accordingly, the reference to confusion in paragraph 7 of the Defence is appropriate and proper.\n\nii)\n\nThe absence of likelihood of confusion goes to whether the Defendants can establish that there is referential use, which does not affect the essential function of the trade mark.\n\niii)\n\nFurther or in the alternative, the question of whether there is a commercial connection between the parties (i.e. confusion between them) is material to whether the Defendants’ use is in accordance with honest practices in industrial and commercial matters – see C-228/03\nGillette Co v LA Labs\n[2005] ECR I-2337, at [42] and [49], and\nSamuel Smith Old Brewery (Tadcaster) v Lee\n\n[2011] EWHC 1879 (Ch)\n,\n[2012] FSR 7\n, at [116]-[118]. Accordingly, the references in paragraphs 9 and 65 (and paragraph 65(e)) of the Defence and Counterclaim are appropriate and proper.\n\niv)\n\nFurther, confusion is relevant to establishing whether there is a link between the marks for the purposes of\nsection 10(3)\n\nTMA 1994\n(or their uses in this case) – see C-252/07\nIntel Corp v CPM\n[2008] ECR I-8823, [42]. Accordingly, the reference in paragraph 64(b) of the Defence and Counterclaim is appropriate and proper.\n\n167.\n\nI consider that each of these points is well arguable, and therefore that the Defendants should not be prevented from relying on the matters alleged once it is understood that they are not being deployed to meet a case of confusion. Mr Selmi really did not have any answer to this.\n\nParagraphs 91 to 93 – the Newer Marks\n\n168.\n\nThe Defendants’ counterclaim seeks a declaration of invalidity in respect of, and revocation of “the Old Marks” on the basis of their non-use until at least five years from the date after the registration (i.e. where there has been no use thereof within the grace period, and the latter has expired). The question that arises as to whether, in this context, it is appropriate for the Defendants to also make reference to the two Newer Marks (UK3630915 and UK3772016) in respect of which the five year grace period will not expire until 12 February 2027 and 25 June 2027 respectively. The Defendants plead five years non-use, and, in paragraph 93(c) of the Defence and Counterclaim, that insofar as the trial of the Counterclaim takes place after the relevant expiry dates of either or both of the Newer Marks, it is in accordance with the overriding objective to seek to resolve the validity of those marks at the trial of the present claim rather than by having to commence a later revocation action.\n\n169.\n\nThe Claimants maintain that it is wholly inappropriate and without precedent to maintain inchoate allegations and claims of this kind.\n\n170.\n\nHowever, I note that no specific relief is claimed in relation to the Newer Marks in that paragraphs 1 and 2 of the Prayer to the Particulars of Claim simply list the Old Marks. Further, as a matter of principle it would have been open to the Defendants to seek a declaration that the Newer Marks would become liable to be revoked absent use thereof prior to the relevant expiry dates, and there are practical case management reasons for dealing with all the relevant trade marks in respect of which revocation might be sought at one time without the need for duplicity of proceedings.\n\n171.\n\nIn the circumstances, on balance, I am persuaded that it is not appropriate to strike out the relevant paragraphs of the Defence and Counterclaim. In order to seek relief in relation to the Newer Marks, should it become appropriate to do so, then the Defendants will have to apply for permission to amend the Prayer to the Counterclaim to make reference thereto. The Court can, at that stage, consider the appropriateness of dealing with the question of the revocation of these Newer Marks at the trial of the present proceedings.\n\nConclusion in respect of the Claimants’ Application\n\n172.\n\nFor the reasons set out above, subject to the reference to\ns. 10(2)\n\nTMA 1994\nbeing deleted from paragraph 65 thereof, I am not persuaded that it is appropriate to strike any paragraphs of the Defence and Counterclaim, although if I had not acceded to the Defendants’ Application relating to the copyright claim, then it is likely that I would have required that paragraphs 14 to 26 be struck out, or at least redrafted and repositioned within the Defence and Counterclaim.\n\nAPPENDIX A\n\nCOPYRIGHT ALLEGATIONS IN DRAFT AMENDED PARTICULARS OF CLAIM\n\n“Copyright\n\n15.\n\nFurther or alternatively, the Claimants are and have at all material times been the owner of\n, or exclusive licensee of,\nUK copyright subsisting in (1) the Claimants’ logos shown below (the “\nClaimants’ Sports Logos\n” and “\nClaimants’ Casino Logos\n”\n; hereinafter\nthe “\nClaimants’ Logos\n” or the\n“Logos\n”\n); and (2)\nin respect of\nthe Claimants’ bwin Website, Coral Website, Ladbrokes Website and Sportingbet Website, the\nwebsite\nextracts shown at\nAnnex 3(a)\nherein\nonly\n(\ntogether,\nthe\nwebsite extracts relied upon are\nhereinafter referred to as the\n“\nClaimants’ Websites\n”):\n\nThe Claimants’ Sports Logos\n\nThe Claimants’ Casino Logos\n\na.\n\nThe Claimants’ Sports Logos, Claimants’ Casino Logos and Claimants’ Websites are original artistic works, being graphic works, pursuant to\nSections 1(1)\nand 4(1)(a) of the\nCopyright, Designs and Patents Act 1988\n(the \"\nCDPA 1988\n\"). The Claimants’ Sports Logos, Claimants’ Casino Logos and the Claimants’ Websites are original works in that they are not copied from other graphic works and are the expression of their authors’ own intellectual creations, reflecting their personalities, as an expression of their free and creative choices so as to stamp the works with their personal touch;\n\nClaimants’ Logos\n\naa.\nTo the best of the Claimants’ knowledge and understanding, the Claimants\nhereunder plead as follows:\n\n(i)\n\nHaving made reasonable enquiry, the Claimants are not presently able to identify\nall of the dates of creation of the aforesaid Logos and/or their authors. If and to\nthe extent that the Claimants’ Logos or any part of them were not created by\nemployee(s) of the Claimants in the course of their employment, it is reasonably\ninferred that the Claimants own the copyright in the said logos for the following\nreasons:\n\nA.\n\nThe Entain Group and the Claimants acquired the bwin, Coral, Ladbrokes,\nSportingbet, Foxy, Gala and Party Casino brands as pleaded at paragraph\n13 herein. It is reasonably inferred that the relevant intellectual property\nrights, including copyright, would have been transferred to the Entain Group\nand the Claimants pursuant to those acquisitions;\n\nB.\n\nEach of the Logos shown below is a registered trade mark in multiple\njurisdictions owned in each case by one of the Claimants or another company\nwithin the Entain Group:\n\nThe Claimants’ Sports Logos\n\nThe Claimants’ Casino Logos\n\nC.\n\nThe Claimants and other companies within the Entain Group have engaged\nin a long course of business during which they have used the Logos\nextensively, as pleaded at paragraph 13 herein. Such dealings with the works\nby the Entain Group and the Claimants, specifically, are consistent with the\nacts of ownership of copyright in the Claimants’ Logos. The Claimants are not\naware of any competing claim to ownership from any third party;\n\nD.\n\nIn the premises, it is reasonably inferred that the Claimants own the copyright\nin each of the Logos.\n\n(ii)\n\nIn the alternative, if and to the extent that the copyright in one or more Logos is\nheld by another person and is not owned by the Claimants, the Claimants are\nthe exclusive licensee of such copyright, having all the rights of a copyright owner\npursuant to\nSection 101(1)\n\nCDPA 1988\n. The Claimants hereunder plead as\nfollows:\n\nA.\n\nThe particulars at (A)-(D) above are repeated;\n\nB.\n\nThe Logos are, by definition, intended to function as logo devices for the\nClaimants’ business, and it is reasonably inferred that they were designed\nwith the intention that they be used for that purpose exclusively by the\nClaimants, alternatively such an intention would have been obvious to a\nreasonable author or authors;\n\nC.\n\nIn the circumstances, it is reasonably inferred that any Logos that were, in\nfact, created by a third party and wherein the copyright is not owned by the\nClaimants, were created pursuant to a contract between the Claimants and\nthe author or authors of the Logos. In the premises, it was an express term,\nalternatively an implied term, of such contract that the Claimants were to be\nthe exclusive licensee of the copyright in the said logo thereunder;\n\nD.\n\nIf, contrary to the Claimants’ primary case, the Claimants are not the owner\nof the copyright in one or more Logos, it is reasonably inferred that they are\nexclusive licensees.\n\nb.\n\nThe Claimants’ Sports Logos, Claimants’ Casino Logos and Claimants’ Websites\nwere originally created by teams of employees of the Claimants and were\nsubsequently added to by other teams of employees of the Claimants over time, in\nall cases acting in the course of their employment. The Claimants therefore own\ncopyright in the same, by virtue of\nSection 11(2)\nof the\nCDPA 1988\n. The Claimants\ncontend that they own copyright in all iterations of the Claimants’ Sports Logos,\nClaimants’ Casino Logos and the Claimants’ Websites and will rely for the purposes\nof this claim on any versions of the Claimants’ Sports Logos, Claimants’ Casino\nLogos and Claimants’ Websites that have been reproduced by the Defendants (see\nbelow);\n\nClaimants’ Websites\n\nbb.\nTo the best of the Claimants’ knowledge and understanding, the Claimants\nhereunder plead as follows:\n\n(i)\n\nHaving made reasonable enquiry, the Claimants are not presently able to identify\nall of the dates of creation of aspects of the Claimants’ Websites and/or their\n\nauthors. If and to the extent that the Claimants’ Websites or any part of them\nwere not created by employee(s) of the Claimants in the course of their\nemployment, it is reasonably inferred that the Claimants own the copyright in the\nsaid works for the following reasons:\n\nA.\n\nThe Claimants and other companies within the Entain Group have engaged\nin a long course of business during which they have used earlier iterations of\nthe Claimants’ Websites extensively, as pleaded at paragraph 13 herein;\n\nB.\n\nSuch dealings with the works by the Entain Group and the Claimants,\nspecifically, are consistent with the acts of ownership of copyright in the\nClaimants’ Websites. The Claimants are not aware of any competing claim to\nownership from any third party;\n\nC.\n\nIn the premises, it is reasonably inferred that the Claimants own the copyright\nin each of the Claimants’ Websites.\n\n(ii)\n\nIn the alternative, if and to the extent that the copyright in one or more aspects\nof the Claimants’ Websites is held by another person and is not owned by the\nClaimants, the Claimants are the exclusive licensee of such copyright, having all\nthe rights of a copyright owner pursuant to\nSection 101(1)\n\nCDPA 1988\n. The\nClaimants hereunder plead as follows:\n\nA.\n\nThe particulars at (A)-(C) above are repeated;\n\nB.\n\nThe Claimants’ Websites advertise, promote and offer the Claimants sports\nbetting and gaming services, and are therefore integral to the Claimants’\nbusiness. It is reasonably inferred that the Claimants’ Websites were\ndesigned with the intention that they be used for that purpose exclusively by\nthe Claimants, alternatively such an intention would have been obvious to a\nreasonable author or authors;\n\nC.\n\nIn the circumstances, it is reasonably inferred that any aspects of the\nClaimants’ Websites that were, in fact, created by a third party and wherein\nthe copyright is not owned by the Claimants, were created pursuant to a\ncontract between the Claimants and the author or authors of the said works.\nIn the premises, it was an express term, alternatively an implied term, of such contract that the Claimants were to be the exclusive licensee of the copyright\nin the said works thereunder;\n\nD.\n\nIf, contrary to the Claimants’ primary case, the Claimants are not the owner\nof the copyright in one or more aspects of the Claimants’ Websites, it is\nreasonably inferred that they are exclusive licensees.\n\nc.\n\nThe Claimants’ Sports Logos, Claimants’ Casino Logos and Claimants’ Websites qualify for UK copyright protection.\nInsofar as the authors of the said works are\nknown, they\nThe aforesaid employees\nwere at all material times qualifying persons\npursuant to\nSections 154(1)\nand/or (2)\nCDPA 1988\n,\nthat is to say, British Citizens\nand/or individuals domiciled or resident in the UK, under\nSections 154(1)\n(a) and/or\n\n(b)\n\nof the\nCDPA 1988\n. Further or alternatively, the said works\nqualify for UK copyright\nprotection by reference to country of first publication pursuant to\nSections 155(1)\nand/or (2)\nCDPA 1988\nwere first published in the United Kingdom and are entitled to\nUK copyright under\nSection 155(1)\n(a) of the\nCDPA 1988\n;\n\nd.\n\nWithout prejudice to the foregoing,\nwhere the author(s) of the Claimants’ Logos and\nClaimants’ Websites cannot be ascertained by reasonable inquiry,\nthe Claimants will, if necessary, rely on the statutory presumptions in\nSections 104(4)\nand (5) of the\nCDPA 1988\n.”","changes":[]}