SKE v Bargain Busting: High Court Clarifies Goodwill Standards in Trademark Opposition

The High Court's recent judgement in Shenzhen Ske Technology Co Ltd v Bargain Busting Limited has provided valuable clarification on the evidentiary thresholds required to establish protectable goodwill in trademark opposition proceedings. Delivered on 1 July 2025, the ruling underscores the stringent standards that must be met when claiming pre-existing rights in trademark disputes.

Background and Key Issues

The appeal stemmed from Ms Judi Pike's decision at the UK Trade Marks Registry, where she rejected SKE's opposition to Bargain Busting Limited's application for the "CRYSTAL BAR" mark covering vaping products. SKE contended that it had accumulated goodwill in the mark prior to BB's application date of 10 May 2022, citing a "soft launch" at the World Vape Show in December 2021 and distribution arrangements with Shemax Ltd.

The central question concerned whether SKE had demonstrated sufficient evidence of protectable goodwill to sustain its passing off claim and trademark opposition.

The Court's Analysis

Deputy Judge Michael Tappin KC found the evidence presented by SKE fundamentally inadequate to establish goodwill at the relevant date. The judgement identified several critical deficiencies in SKE's case:

The purported "soft launch" at the World Vape Show lacked substantive evidence of attendance figures or meaningful marketing impact. The court noted the absence of documentation demonstrating any substantial promotional activities or consumer engagement that would generate protectable goodwill in the UK market.

Much of SKE's evidence related to post-application activities, failing to substantiate claims of pre-existing goodwill. The hearing officer's finding of no "cogent evidence" of reputation in the relevant goods was upheld, reinforcing that mere assertions cannot substitute for demonstrable market presence.

SKE's argument regarding potential goodwill amongst trade customers, based on its relationship with distributor Shemax, was rejected. The court determined that reliance on a single distributor did not constitute broader consumer goodwill, nor did it establish the requisite reputation amongst trade customers.

Evidentiary Standards Reinforced

The judgement emphasises that establishing goodwill requires tangible evidence beyond speculative assertions or limited commercial arrangements. The court dismissed the appeal on three grounds: insufficient evidence of trade customer goodwill, lack of rationally supportable evidence, and inadequate consideration of pre-launch advertising activities.

The ruling clarifies the distinction between marketing activities and established consumer recognition. Preparatory commercial activities, without demonstrated market penetration or consumer awareness, cannot constitute protectable goodwill for opposition purposes.

Implications for Practice

This decision reinforces established principles whilst providing practical guidance on evidence requirements. The judgement demonstrates that soft launches, preliminary distribution arrangements, and limited promotional activities will not satisfy the goodwill threshold without substantial supporting evidence of market impact and consumer recognition.

The ruling particularly emphasises the temporal element of goodwill evidence—rights holders must demonstrate that protectable goodwill existed at the relevant application date, not merely that commercial preparations were underway.

The case serves as a cautionary reminder that trademark opposition strategies must be underpinned by robust evidence of established market presence. Speculative claims based on preliminary commercial activities will not withstand judicial scrutiny, regardless of the scale of intended future operations.

Shenzhen Ske Technology Co Ltd v Bargain Busting Limited thus provides important clarification on the evidential standards required in trademark opposition proceedings, reinforcing that protectable goodwill demands demonstrable consumer recognition rather than mere commercial preparation.