Trust must pay out after losing trademark court battle

Birmingham and Solihull Mental Health Foundation Trust must pay at least £36,000 after a High Court judge found it had infringed a trademark owned by a small training company.

Trust chief executive John Short said the trust had contested the case based on “legal advice”, adding he was “naturally disappointed” the trust had lost.

The trust’s dispute with Leicestershire-based APT Training & Consultancy Limited was over the use of the name “RAID”.

APT has provided training for mental health treatment called Reinforce Appropriate (behaviour), Implode Disruptive since 1990, which is aimed at people displaying disturbed and challenging behaviour. The NHS is the company’s biggest customer.

Since 2009, the £235m-income trust has also used the name “RAID” for a specialist multidisciplinary mental health service. The RAID team won an HSJ award in 2010.

In December 2016, APT became aware of the trust’s use of the name. The company asked the trust to change the name, as it breached the trademark owned by APT.

However, the trust refused, and the case ended up in the Intellectual Property Enterprise Court.  

William Davies, chief executive of APT Training, previously told HSJ he was concerned about losing business as a result of the trust adopting the name for its service.

“We didn’t ask for damages,” he said. “We only wanted them to stop using the name. We suggested several times they change the name to “RAPID”, with the P standing for planning.”

Mr Short told HSJ the trust believed the use of the name by APT applied to a “different area of business, namely a training course and not a service”.

According to court documents, the trust also argued its use of the name was not “in the course of trade”, but related to training, and was not “commercial activity”.

But Judge Melissa Clarke found the trust’s RAID service provided a “significant financial benefit” to the trust, as it “obtains payment” for the service.

In her judgment, she also criticised the trust’s only witness, clinical director for urgent care pathway George Tadros, who she said engaged in “semantic gymnastics” and “did not give his evidence in a straightforward manner…but…sought to provide evidence which would best support the trust’s defence”.

The trust must now pay APT’s legal costs, which are estimated to be around £36,000. The trust did not tell HSJ how much its own legal costs were, though costs were capped at £50,000 per party. The trust was represented in court by a member of its legal department.    

Mr Davies said: “I think it’s a downright shame it went to court and it’s entirely the trust’s fault. We made every effort to avoid it. It makes me cross that so much time was wasted on this.”

Mr Short said the trust had offered mediation with APT before the case went to court. Mr Davies dismissed that claim.   

Mr Short added: “We accept the judgment and are working to comply with the judge’s order, which includes paying costs of £36,000.”

The trust is forecasting a surplus of £1.9m, which includes provider sustainability funding, in 2018-19.

HSJ asked the trust why it decided against changing the service’s name when approached by APT in 2016, and who was responsible for the matter going to court, but the trust did not respond.