A High Court judge took the unprecedented legal step yesterday of declaring that the European Court of Justice had overstepped its authority when it ruled against a London-based market trader, who has been defending his right to sell unofficial merchandise bearing the Arsenal name outside the club’s stadium.
As a result, Mr Justice Laddie said that Matthew Read, an Arsenal fan who has been selling football souvenirs and memorabilia for more than 30 years, should win on the issue of trademark infringement – a reversal of the ECJ’s decision. But Arsenal will be able to appeal to the English Court of Appeal.
Afterwards, a jubilant Mr Reed, whose legal battle has lasted almost two years, described the decision as “very brave”.
“The judge has got it absolutely right and we think the Court of Appeal will uphold his decision. This case has given me great faith in British justice;” he said.
Mr Justice Laddie, one of the High Court’s senior patent judges, had originally referred the case to the ECJ for clarification on trademark law.
But when the ruling in Arsenal’s favour came back from Luxembourg, Mr Reed’s legal team claimed that it contained fresh “findings of fact” at odds with the facts determined by the High Court.
Yesterday, Mr Justice Laddie said: “if this is so, the ECJ has exceeded its jurisdiction and I am not bound by its final conclusion.
“The courts of this country cannot challenge rulings of the ECJ within areas of competence…Furthermore, national courts do not make references to the ECJ with the intention of ignoring the result,” the judge said.
But he added: “On the other hand, no matter how tempting it may be to find an easy way out, the High Court has no power to cede to the ECJ a jurisdiction it does not have.”
The judge said that the only course was for him to apply the ECJ’s guidance on the law – which concerned the use of signs identical to trademarks as badges of support or loyalty – to the findings of fact made in the High Court.
But the judge did add that the correct route of appeal would be the Court of Appeal which, “unlike the ECJ…will have all the evidence before it and will given the parties the opportunity to argue what the proper findings of fact should be”.
An official at the ECJ said: “It happens once a year or once every two years that the court misunderstands the facts of a case and therefore the national court can ask the court another question [about EU law].”
“Financial Times” December 2002
