The claimants alleged infringement under s.10(1) and s.10(2) of the Trade Marks Act 1994 (TMA) due to the defendant’s offering for sale of MARSHALL branded headphones on Amazon UK.

Representation

The defendant had been represented by Mr Pépin Aslett, instructed by Orwins Law Limited (Orwins). However, just three days before the trial, Orwins had applied for an order declaring that it had ceased to act and removing it from the court record. The supporting witness statement, was provided by a partner at Orwins who had conducted of the matter. It detailed that the defendant was indebted to Orwins, and that repeated requests for payment had gone unmet. Under the relevant Civil Procedure Rules, an application to come off record must be notified to the client and it must be supported by evidence, including proof of service. However, the witness statement did not detail service of the application, which was allegedly via email.

The application reached the judge a day before the trial. To assure the court that the defendant had proper notice of the application, the judge requested that Orwins attend the first day of the trial.

While the defendant did ask Orwins to remain their representative, the fees remained unpaid. Orwins had asked again for immediate payment, however, no response, nor money, was received. In addition, Orwins explained that the defendant was in Israel and did not intend to attend the trial, despite explaining that they could do so remotely or apply for an adjournment.

The judge was satisfied that the defendant knew of the application. The judge directed Orwins to file a certificate of service recording the date and time of service, which Orwins did, and granted the order removing Orwins from the record.

Despite the defendant’s absence, the judge was satisfied to proceed with the trial for the following reasons:

• The defendant had proper notice of the trial date.
• The defendant had been informed about attending the trial remotely or applying for an adjournment.
• The claimants had gone to the time and expense of preparing for trial and the court had done its pre-reading.
• If the judgment went against the defendant in their absence, they could apply to set it aside.

Infringement

By contrast, the infringement part of the trial was straightforward. The main two issues were as follows:

1. whether the MARSHALL headphones offered by the defendant had been put on the market in the UK or EEA by the claimants or with their consent; 
2. If so, whether the claimants had a legitimate reason under s.12(2) TMA to oppose further dealings in the goods.

The judge accepted the claimants’ evidence in full and found that the test purchase products bore the claimants’ trade marks and has been offered for sale in the UK by the defendant.

The judge also found that those products were counterfeit. The serial numbers on the test purchases were missing from the claimants’ records system. The claimants had also presented a long list of differences between the test purchases and the genuine Marshall headphones which was powerful and persuasive.

The defendant had failed to prove that the test purchases were put on the market in the UK or EEA by the claimants or with their consent. In fact, the defendant had stated that it did not know where or from whom its supplier had acquired the goods. The burden of proving consent lies on the defendant, and the claimants' earlier sales of the same headphones were irrelevant, because exhaustion is assessed for the specific goods in issue.

In light of these findings, the judge had no difficulty concluding that the defendant had infringed the claimants’ trade marks pursuant to s10(1) TMA and there was no need to consider s10(2) TMA.

In short

This case is a clear illustration of the exhaustion defence and the burden on a seller who relies on it. It is also a useful example of how the court handles a last-minute solicitor withdrawal, including the court’s care over proper notice, the importance of a compliant certificate of service, and the balance between a defendant’s right to be heard and the efficient use of court resources.

Case details at a glance

Jurisdiction: England & Wales
Decision level: IPEC
Parties: Marshall Group AB & anr v Owgh Limited
Date: 30 October 2026
Citation: [2026] EWHC 2753 (IPEC) 
Decision: https://dycip.com/2026-ewhc-2753-ipec