Lotus vs. Lotus ?

[Kootje]

Deel 5:

Clause 5 gives GL the right to assign the benefit but not the burden of the agreement to Lotus Cars or any other subsidiary of GL but subject to a number of provisos involving giving notice to TLIL, delivering a certified copy of the assignment together with an undertaking by the assignee under seal to the reasonable satisfaction of TLIL whereby the assignee will be bound to TLL not to do or fail to do anything in relation to the subject matter of the 1985 Agreement which would if done by GL be a breach.
Those obligations are clear in the sense that it is the only way in which by a fresh document that an assignee of the benefit of any agreement becomes also liable to the burden. If it covenants under seal of course no further consideration is required see Cannon v Hartley 1949 Ch 213.
Probably the most important provision is 6.2 which provides:-
"[GL] hereby acknowledges the right of [TLIL] to continue to use the names of "Team Lotus" and "Club Team Lotus" in relation to its business and the right of Team Lotus to use the [Lotus Roundel], with or without the words "Team Lotus" (examples of which are contained in the 6th Schedule hereto) in relation to its business and Team Lotus acknowledges the right of [GL] to continue to use the names "Group Lotus" and "Lotus" and [the Roundel] (a representation of which appears in 7th Schedule in relation to its business."
There are provisos to that clause which also require consideration.
Regrettably but perhaps understandably the 1985 Agreement does not explain what the actual respective rights of TLIL and GL being acknowledged are and are stated to be being capable of continuing. GL's case before me is that TLIL had no existing rights at that time. That seems to me to be extremely improbable given the history that I have set out above. It also requires a rejection of a carefully drawn agreement entered into by GL and TLIL after friendly but clearly argued negotiations. Nor should it be forgotten that both sides had experienced business and IP Lawyers acting for them. I do not see that coterie would have entered into an agreement if there were no such existing rights that were acknowledged.
It is possible to consider two possible "rights" in relation to TLIL's activities. It could be said that as part of the goodwill of Lotus Cars which exclusively belonged to GL it was licensed to exploit that goodwill by racing cars under the name of Team Lotus or Club Team Lotus. The alternative argument is that GL had its own business as set out in recital (A), TLIL had its own separate business as set out in recital (B). Both were the creatures and creation of Colin Chapman but were separated out with the flotation in 1968. On that basis the 1985 Agreement acknowledged that there were two business entities which were associated but since 1968 each has had their own separate business (albeit associated with the other) and its own rights. The 1985 Agreement then acknowledged the rights. It seems to me to be obvious given the material which I referred to above that the uses were the respective uses of GL and TLIL in respect of their businesses. Thus GL had the goodwill associated with the manufacture and sale of sports cars and TLIL had a separate goodwill associated with the manufacture of racing cars. The latter was the inheritor of the racing car activity Team Lotus carried on since the 1950's initially by Colin Chapman and by TLL and it since 1961 until its demise in 1982.
By the same clause TLIL acknowledged GL's continued rights in relation to its business. This to my mind makes perfect common and commercial sense. The purpose of the 1985 Agreement as evidenced by Mr Monk and on its face is to put on a proper written footing what had actually gone on in the past. The fact that it had not been put on a proper footing before was entirely down to the control exercised by Colin Chapman over both companies. After his demise the control of GL was removed from the Chapman family with the share acquisitions in 1983 so that it became essential for all of the reasons set out above, for their respective rights to be crystallised and set out formally in a document. I accept that GL has other arguments to the effect even if that was the intention of the parties the 1985 Agreement could not legally achieve it. I will deal with those further in this judgment.
There are two important provisos to clause 6.2 as follows:-
"PROVIDED THAT if this Agreement shall have been terminated for any reason whatsoever GL subject to Clause 10.2 below shall be entitled but not otherwise to own or run or be associated with another motor racing team running "A" Class Racing vehicles which may have in its title and use the name "Lotus". After termination of this Agreement for any reason whatsoever and subject to Clause 10.2 below GL shall be entitled to own or run or be associated with another racing team running Racing vehicles using the name "Lotus" PROVIDED THAT GL shall have given to [TLL] prior notice in writing of their proposal to use the name "Lotus" together with the actual name to be used in relation to such team but shall not in its name use the word "Lotus" on its own nor the word "Team" or any translation thereof in conjunction with the word "Lotus". Team Lotus will ensure any use that it makes of the name "Lotus" will only be in the form "Team Lotus" with the words "Team" and "Lotus" having substantially equal prominence."
The provisos seem to me to be reasonably clear. If the 1985 Agreement is terminated GL can enter car racing. It can do so under the name Lotus. However it cannot use the word Lotus alone and must use a word submitted to TLIL and cannot use the word Team. Under the 1985 Agreement there was a clear separation of activities. GL made and sold sports cars. TLIL raced cars. Neither interfered in the other's operation. However the provisos clearly contemplated that after the Agreement ceased to be of effect GL could enter for the first time into racing. If it did so it could use the word Lotus but only in association with another word and that other word could not be Team.
It is significant that the clause does not attempt to stop GL from using the word Lotus other than in the racing car activity and it does not stop TLIL from using the words Team Lotus in the racing car activity. It goes further in that it prevents GL from using the word Team if it wants to enter the racing car activity. The termination provisions therefore contemplated the possibility of what is precisely happening now namely two Lotus cars simultaneously racing but with different names.
If as the Claimants submit at all times all rights including the right to the use of the word Team were vested in it the wording of this clause would be completely different. It would have provided that the limited permission that TLIL was given to use the name Team Lotus pursuant to the Agreement would have terminated and all rights would have reverted to GL. In fact the clause does exactly the opposite. It does not purport to stop any use by TLIL of Team Lotus and restricts GL if it chooses to come and compete with TLIL on the racetrack in the use of the name Lotus. By way of contrast during the currency of the Agreement TLIL's continued principal business is that of designing and manufacturing and operating a team of racing vehicles and during the Agreement's currency it agreed it would not be engaged in the manufacture, sale or consultancy of motor vehicles other than racing vehicles (clause 10.1). GL gave similar obligations as regards racing (clause 10.2).
Clause 6.3.2 required TLIL upon the transfer of its business to ensure that any transferee executed a deed expressed to be supplemental to the Agreement whereby it undertook to be bound by TLIL's obligations. There is nothing significant about that; it is a way of ensuring a new party becomes subject to the burdens of the Agreement. The rest of clause 6 addressed co-operation and marketing save at the end of 6.7 TLIL agreed that it should not be entitled to use the word "Lotus" without the addition of the word "Team" before it. Finally clause 6.8 provided that clauses 6.1, 6.2, 6.3, 6.6, and 6.7 remained in full force not withstanding the termination of the Agreement.
Thus the important restrictions on their respective rights to use the words Lotus and Team Lotus in 6.2 survive the termination of the Agreement. That demonstrates to me that those arrangements were to be permanent and in view of the restrictions reflected the fact that the parties acknowledged that TLIL had a protectable right in respect of the use of Team Lotus which GL agreed not to infringe. As I have said there are no provisions for transfer back to GL or termination of rights granted by GL; TLIL's rights are declared (although not identified) and are preserved after termination. For that to work sensibly it involves GL's rights being restricted in the sense that they could not stop TLIL using the phrase "Team Lotus" before, during and after the 1985 Agreement in respect of F1 racing. As Mr Silverleaf QC was at pains to point out to me on a number of occasions the 1985 Agreement did not (save in respect of cancellation and registration of trade marks) purport to create new rights. It does not make sense in my views for the existing rights of TLIL to be limited to a License. If it were it would have been terminated and the restrictions found in the provisos to clause 6.3 simply would not have come into existence.
As part of the continued association for the mutual benefit TLIL (clause 16.3) agreed to make racing cars available for the British Motor Show and the British Motor Fair together with appropriate personnel at a fee of the transport and insurance costs plus 10%. Similarly it agreed to make available for display all trophies won by TLIL (clause 17.6). These two provisions demonstrate the desire of the parties (particularly GL in reality) to exploit the association with a successful F1 racing team. However it does not in my view go beyond an association; the respective party's rights are clearly defined in the 1985 Agreement.
Clause 20 dealt with trade marks. It provided for the Team Lotus and Club Team Lotus and Lotus World trade marks currently registered in the name of GL to be cancelled. By clause 20.2 GL undertook not to use any rights under its remaining trade mark registrations worldwide "against Team Lotus in relation to the business of Team Lotus as described in recital (B) above". By clause 20.3 GL agreed upon request to provide written consent to register worldwide the trade marks of Team Lotus referred to in clause 6.2 (i.e. those associated with the names "Team Lotus" and "Club Team Lotus"). By clause 20.4 TLIL agreed to provide a counter-part consent in respect of GL's request to register "Lotus" and "Group Lotus" and the Lotus logo set out in the 7th Schedule. By clause 20.5 GL agreed to restrict its existing trade mark registration by removal of A class racing vehicles from the specifications. It was provided by clause 20.8 that the provisions of this clause survived the termination of the Agreement. Once again this clause in my view demonstrates the clear separation of the ownership of the marks as between GL and TLIL. It is also clear that the separation was intended to be permanent i.e. the GL marks remained its and the Team Lotus marks became TLIL's. This reflected also the division between car manufacturing activities and racing activities. Whilst the provisos in clause 6.2 enabled GL on terms to compete in car racing after its termination no part of the Agreement attempted to undo the registration and the acknowledgment of the rights. It actually did the opposite by providing that the relevant provisions remained enforceable not withstanding termination of the Agreement.
The duration of the Agreement was for an initial period until 31st December 1989 and termination thereafter on 12 months notice (clause 24). Clause 25 sets out termination for breach or insolvency.
The consequences of termination are set out in clause 26. The clause is more relevant as to what it does not say i.e. it does not purport to unscramble the trade mark cancellations and it purported to perpetuate a separation between car manufacturing and car racing and restricted GL in its use of Team Lotus even after the Agreement had terminated.
Finally clause 32 provided for the Agreement to be personal to the parties and not assignable as regards benefits without the previous written consent of the other party (save as provided in clause 5).
The initial period of the 1985 Agreement expired in 1989. There has never been intent by either party to invoke the termination procedures either in clause 24 or upon cause as set out in clause 25.
TLIL still exists but it had assigned its rights to Infiniti (below). Nobody has addressed the legal consequence of that but nobody asserts that the 1985 Agreement continues to bind parties as regards its provisions that operated whilst it existed. Nevertheless the provisions which affected an acknowledgment of their rights and the permanent cancellation and re-registration of trade marks are still relevant because GL still exists and the Defendants contend that TLVL has succeeded to the business which acquired the permanent rights and the acknowledgment in the 1985 Agreement of the existing rights of TLIL. It cannot however enforce the provisions of the 1985 Agreement because it has never become a party thereto whether by novation or by executing the requisite deed as required. Equally GL for the same reasons cannot enforce the provisions of the 1985 Agreement against TLVL, not that it would wish to do so, because its stance is that TLVL absent an assignment with its agreement cannot become a party and any such assignment would be a nullity, see Linden Gardens Trust v Lenestra Sludge Disposals Ltd 1994 1 AC 85. I accept that
.

[Kootje]

En wat Tony Fernandez erop te zeggen had.

Team Lotus statement
27th May 2011. Team Lotus is very happy that the court case concerning the rights to the Team Lotus name has today come to a positive conclusion and that the team can now focus its full attention on its long-term challenge for honours on and off track.
The decision confirms that Team Lotus is the true owner of the full Team Lotus name and the iconic roundel, establishing in law that the Anglo-Malaysian team is the rightful heir to Team Lotus and all associated goodwill.

Team Principal Tony Fernandes gave his comments on behalf of his fellow shareholders Kamarudin Meranun, SM Nasarudin and the 250 strong workforce based in Malaysia and Hingham, UK: "We are all pleased that it has been clarified that we are the rightful owners of Team Lotus. We have always been confident that the factual evidence we presented would lead to this decision and today's judgment confirms that belief. We are of course disappointed about the decision that Group Lotus was entitled to end the our licence agreement in 2010. We entered into that contract on the basis that we were beginning a long-term partnership with Group Lotus but unfortunately they then used technical breaches of the merchandising pre-notification process to bring the licence and our partnership to an end. However, my fellow shareholders and I are firm believers that when one door closes another door opens. In the early days of our agreement we realised its termination was inevitable and as events have unfolded the end of the licence has proved positive for us, with many new avenues being opened up as a result.

"We wanted to develop a long-term relationship with Group Lotus and help them sell more cars around the world but that door closed and now we are delighted that we can turn our attention to ensuring success for Caterham Cars on the road and Team Lotus on track. These are two very exciting brands and their future development, bringing these two iconic brands together under the Caterham Team Lotus umbrella, will see us introduce new Caterham cars and a range of new Team Lotus brands into the global marketplace. Now our main aim is to build on the solid foundations that has made Caterham Cars the model for how to run a profitable contemporary car company and add more history to the incredible story of Team Lotus over the coming months and years and with the people, spirit, passion and determination we have in both businesses we know that marks the next stage in our incredible story."
.

[gloudiesaurus]

Hier schieten dus beide niets mee op, ze blijven allebei Lotus. En de onduidelijkheid in de Formule 1 blijft ook...

[0634]

Ach, ik ben er nu wel aangewend. Van mijn part komen er ook twee Brabham, BRM en Cooper teams

[gloudiesaurus]

Er komt een hoger beroep, dus dat begint het hele spelletje weer opnieuw

[Franky R.]

Er komt een hoger beroep, dus dat begint het hele spelletje weer opnieuw

Oh? Dacht dat het allemaal al duidelijk was?
http://www.formula1blog.com/2011/05/27/court-verdict-in-team-lotus-wins-group-lotus-wins/

Hm, de advocaten zullen het niet erg vinden...

[gloudiesaurus]

Het is allemaal lekker ingewikkeld weer. Team Lotus zou haar naam alleen mogen gebruiken in combinatie met F1. En Ecclestone heeft nu gehint dat Team Lotus misschien Caterham Cars in haar naam moet verwerken. Iets wat Fernandes van Team Lotus nu in overweging heeft.

[Forza F1]

Het is allemaal vrij ingewikkeld....

Ik zou eigenlijk gewoon willen dat het als volgt beslist wordt:

optie A:   Genii Renault en Team Lotus
optie B:   Lotus Renault en Team Caterham
optie C:   Genii Renault en Team Caterham;  ... f*ck LOTUS! 

anyway, ik gun het meest aan Tony Fernandes

[gloudiesaurus]

Zoals ik het nu lees wordt het:

Lotus Renault en Team Lotus Caterham Renault 

[Kootje]

Voorlopig eerst maar eens het hoger beroep afwachten.
Tot die tijd verandert er niets.

[gloudiesaurus]

Nou volgens de Britse pers heeft Fernandes in overweging om tijdens de Britse GP veranderingen aan te kondigen...

[Forza F1]

Nou volgens de Britse pers heeft Fernandes in overweging om tijdens de Britse GP veranderingen aan te kondigen...

Dat klinkt logisch 
Ben benieuwd...

[Kootje]

Nou volgens de Britse pers heeft Fernandes in overweging om tijdens de Britse GP veranderingen aan te kondigen...

Tsjaa..... ,dat moet dan haast wel de toevoeging van de naam Caterham zijn.
Ik kan iig niets anders bedenken.
Behalve dan dat het team Caterham - Renault gaat heten.
Maar dat lijkt me toch echt sterk.
Tenzij Gennii nu wel met het juiste bod over de brug is gekomen om de naam Team Lotus af te kopen.
Das wellicht goedkoper dan 'n hoger beroep met alle risico's van dien.

[gloudiesaurus]

Ik denk dat Fernandes ook op Caterham gaat inzetten.
Zijn GP2 team heet nu al Caterham, dus lijkt me de toevoeging in Formule 1 logisch


Wel grappig dat na al die jaren nu er weer zoveel te doen is over de erfenissen van Colin Chapman. Want dat zijn Lotus Cars, Team Lotus, en Caterham.

[Kootje]

YES .....de zaak is eindelijk ten einde !!!

http://www.f1today.nl/20110623/rechter-verwerpt-aanvraag-voor-hoger-beroep-van-group-lotus.html