High Court of Ireland Decisions

1. The Independent Radio and Television Commission (IRTC) was established under the provisions of the Radio and Television Act 1988. Pursuant to its statutory powers the IRTC entered into a contract with the Plaintiff Company in February 1989 which enabled the Plaintiff Company to broadcast on sound radio on the FM channel on the 95 wavelength in the Limerick area. The Plaintiffs contract was terminated in February 1996 by the Commission for serious and persistent breaches of the contract. This termination was challenged by the Plaintiff in the High Court and on appeal in the Supreme Court, the Plaintiff being unsuccessful. Its ability to broadcast was lawfully terminated on 31 July 1997.

In addition, the Plaintiff had obtained a licence to broadcast on the Astra satellite from the BBC. These sound broadcasts can be picked up in Western Europe, including Ireland, but only by means of a satellite dish. The evidence establishes that there were 7,000 satellite dishes in the Limerick area capable of receiving signals transmitted by the Plaintiff from the Astra satellite. No figures have been made available of the listenership in respect of this satellite transmission.

The Plaintiff Company carried on two closely related businesses. The first one was a broadcasting service by the two different methods to which I have referred. The second one was the provision of advertising space on its broadcast service. It is obvious that the latter service was the means by which the Plaintiff obtained its profits.

The Plaintiff used three different call signs on its radio broadcast and in its promotional literature. It used the phrases 'Limerick 95 FM', 'Limerick 95' and 'Radio Limerick'. It is quite clear that these different styles refer to the geographic area in which the broad casts take place and to the wavelength and waveband on which they take place.

Although the Plaintiff's contract was terminated, its challenge meant that it was permitted to continue broadcasting until the 31 July of this year.

The Defendant Company has obtained a contract from the IRTC which allows it to broadcast on the 95 FM band in the Limerick area. It is using the style '95 FM Limerick' and '95 Radio Limerick'. Objection has been taken by the Plaintiff in these proceedings to the use of this style and of the call signal. The Defendant proposed to begin broadcasting on 6 November of this year but on 5 November the Plaintiff obtained an interim injunction which prohibited the Defendant offering advertising services under this style.

The basis for the Plaintiff's claim is the tort of passing off. The Plaintiff's claim is that the Defendant is not entitled to use the word 'Limerick' in its style or in its call signal, or the figure and letters '95 FM' in its call or promotional literature.

What is before me today is an application by the Plaintiff for an interlocutory injunction until the trial of the action and an application by the Defendant to lift the interim injunction.

There are a number of issues before me on this Motion. The first issue is raised by the Defendant and is to the effect that the Plaintiff's conduct disentitles it to relief. It is claimed that the Plaintiff failed to inform the Court of the full facts on its ex parte application. These facts relate to the claim that an illegal re-transmission has been taking place of the satellite signal of the Plaintiff, that illegally there is the re-transmission in the Limerick area of the Plaintiff's transmission on the Astra satellite and that there is complicity in this illegality on the part of the Plaintiff. This is strongly denied by the Plaintiff and a number of matters have been raised on affidavit in that connection.

Should it be established at the hearing of this action that there is complicity by the Plaintiff, I am quite satisfied that the Court would refuse to grant relief to the Plaintiff. On this interlocutory motion, however, I can reach no such conclusion. There is a very serious conflict on the affidavit evidence which can only be resolved on oral evidence and on cross-examination of the deponents. Accordingly, I do not consider that I should refuse the Plaintiff relief on the first ground. But on the second ground in this case, to which I will refer, I must refuse the Plaintiff the relief claimed because I do not think that the Plaintiff has raised a serious issue to be tried at the trial of the action.

The nature of the tort of passing off is perfectly clear and long established. It is an actionable wrong for a defendant to represent that his business is that of a plaintiff. The representation can be made by using some of the badges by which a plaintiff's business is known or by colourably resembling them. So if a plaintiff is known by descriptive material or a slogan, provided that it is part of the goodwill of a plaintiff, this material can be protected by means of an injunction should it be shown that a defendant has committed the actionable wrong of passing off (see the Pub Squash case: Cadbury Schweppes Pty Limited v Pub Squash Co Limited [1981] 1 All ER 213, [1981] RPC 439-490).

I not think that the Defendant in this case had made any representation that its business is part of the business of the Plaintiff or that it is in any way associated with the Plaintiff. The representation which the Defendant has made in this case is that it is broadcasting on a certain wavelength on a certain waveband in a certain area, on the 95 FM waveband in the Limerick area. It is not a representation that it is carrying on the Plaintiff's business but that it is now broadcasting on the wavelength on which the Plaintiff formerly broadcast and in the same area. There is no misrepresentation involved in what the Defendant is doing and in my opinion no tort has been established.

There is a second reason why I think that injunctive relief should be refused. The Plaintiff lost its licence to broadcast in the Limerick area because it was in serious breach of the conditions of its licence. It would now be illegal for the Plaintiff to broadcast in the Limerick area. In these circumstances the Plaintiff has no longer any goodwill in the business of sound broadcasting on the FM wavelength which the Court could protect. The Plaintiff, it is said, has applied to the Minister for a licence to re-transmit the signal from the Astra satellite but this licence has not yet been obtained. I cannot exercise my discretion on the basis of a possibility that a licence might be granted by the Minister. I think that I am entitled to form the view that the granting of such a licence is highly unlikely or that it would, if obtained, survive a challenge in the Courts that its grant was ultra vires. As it has not been established that the satellite-based service should be protected by way of injunction, I will not exercise my discretion to protect it. I also do not think that at the trial of the action the Court would exercise its discretion to protect it.

In the alternative I should say this: It seems to me that on the balance of convenience the Court would also refuse to grant interlocutory relief. If an injunction was wrongly granted today, there is no evidence to suggest that the uncompensatable damage which the Plaintiff would suffer would be in any way material. On the other hand it seems to me that compensatable damage could be easily ascertained by reference to the figures for advertising revenue which the Plaintiff would have obtained between now and the trial of the action and which could be shown to have been wrongly obtained. If an injunction was wrongly refused today, it seems to me that considerable damage would be done to the Defendant.

For all of these reasons I must refuse this application.