A question of goodwill: SKE v BB in Crystal Bar trademark dispute

The recent SKE v BB Crystal Bar trademark dispute in the UK emphasises the importance of robust and relevant evidence when seeking to establish goodwill, as Farhan Kazi explains. 

On 24 June 2025, the ongoing dispute between Shenzhen SKE Technology Ltd (SKE) and Bargain Busting Limited (BB) over the Crystal Bar trademark reached the England and Wales High Court (Chancery Division) on appeal. The judgement in Shenzhen SKE Technology Co Ltd v Bargain Busting Ltd (SKE v BB) emphasises once again the importance of evidence when seeking to enforce trademark rights, including demonstrating goodwill.  

Background to the Crystal Bar trademark ruling 

SKE is the manufacturer of CRYSTAL-branded vapes. BB acquired registrations for the marks CRYSTAL CLEAR VAPOURS ELECTRONICS CIGARETTES and CRYSTAL ADDICT and is suing SKE for infringement of its registrations. BB also applied to register the mark CRYSTAL BAR, which was opposed by SKE on the grounds of passing-off and bad faith.   

The Opposition was unsuccessful. The Hearing Officer held that SKE had not sufficiently demonstrated that there was protectable goodwill at the relevant date. The evidence submitted by SKE included material relating to a "soft launch" at a trade show event, which the Hearing Officer considered to be “extremely thin”, and some sales figures relating to sales to a single distributor, which the Hearing Officer considered was not a large amount.   

In respect of the bad faith argument, this ground was not pursued.    

SKE v BB: The Appeal 

SKE appealed this decision on three main grounds: 

• Failure to consider goodwill amongst trade consumers 
  SKE argued that the Hearing Officer did not adequately consider goodwill among trade customers, and that they only considered this in the context of whether it supported the existence of goodwill among ultimate consumers.   
   
• The conclusion that SKE had not demonstrated that it had protectable goodwill was rationally unsupportable  
  SKE submitted that the only rational conclusion from the evidence was that SKE had protectable goodwill on the relevant date (filing date of the contested application).  
   
• The Hearing Officer erred in law in failing to consider goodwill generated by pre-launch advertising 
  SKE argued that pre-launch advertising alone, without actual customers in the UK, can give rise to protectable goodwill.  

In SKE v BB, the Court examined these points carefully and found as follows: 

• Ground 1 – The Hearing Officer had indeed given consideration to evidence, including dealings with trade customers, but ultimately concluded it was insufficient to demonstrate protectable goodwill.   
   
• Ground 2 – The decision of the Hearing Officer was not rationally insupportable. The Hearing Officer was entitled to reach the conclusion that the evidence relating to contacts with trade customers during the soft launch was extremely thin. The Hearing Officer was fully entitled to regard the evidence presented as being inadequate to show that it had protectable goodwill in the UK at the relevant date.   
    
• Ground 3 – There was no evidence of pre-launch advertising to ultimate consumers, so the question of whether pre-launch advertising can create goodwill with ultimate consumers is moot. SKE had a distribution agreement with a distributor, and the Hearing Officer did indeed take this into account in reaching their decision.   

It was held that the Hearing Officer's decision was well-founded, and the evidence was not sufficient to demonstrate goodwill in the UK at the relevant point in time. Consequently, the appeal was dismissed. 

Take-home points from SKE v BB 

SKE v BB is a clear reminder of the importance of robust evidence when claiming prior rights based on goodwill.  

Your trademark attorney should be able to assist in providing some practical advice in maintaining an evidence bank and on the types of materials best suited to assist if evidence is required to demonstrate reputation, goodwill or proof of use.  

To find out more about evidence of use, read our article ‘Trademark tips: Preparing evidence of use’, speak to your Novagraaf attorney or contact our team.  

Farhan Kazi is a UK Chartered Trademark Attorney based at Novagraaf in London.