Court refuses to extend interim injunction to defendant's initials GHR as they do not infringe plaintiff's trademark.

Approved Judgment

THE HIGH COURT

[2025] IEHC 462

Record No.: H.P.2025.0003467

BETWEEN

CHOICE BROADCASTING LIMITED

PLAINTIFF

AND

BAUER AUDIO IRELAND LIMITED

DEFENDANT

JUDGMENT of Mr. Justice Cregan dated 30th day of July, 2025

Introduction

1. This is an application by the plaintiff for an interlocutory injunction to restrain the defendant from using the initials “GHR” in its logo or broadcasting radio station until the trial of the action.

2. The application for this interlocutory injunction comes before the Court in somewhat unusual circumstances.

Background

3. On Friday, 20th June, 2025, the plaintiff applied on an ex parte basis for an interim injunction before me. Having read the papers, and having heard submissions from counsel, I was of the view that it was appropriate to grant an interim injunction in favour of the plaintiff against the defendant in terms of paragraph 1 of the ex parte docket.

4. The order as perfected provided: “It is ordered that the defendant, their servants or agents be restrained from using the brand name “Greatest Hits Radio” on the Failte DAB+ multiplex and any other delivery platform that is available in the Republic of Ireland, such interim injunction to commence at 1pm on Monday 23rd June, 2025” (emphasis added).

5. This order was drawn up in these terms because this was what was sought by the plaintiff. Paragraph 1 of its ex parte docket sought relief in the following terms: “An interim injunction restraining the defendant, its servants or agents from using the brand name “Greatest Hits Radio” on the Failte DAB+ multiplex – and any other delivery platform that is available in the Republic of Ireland – for such period as this Honourable Court may deem fit”

6. The plaintiff, in its submissions during the ex parte application, placed great emphasis on the fact that it had spent considerable sums of money in building its brand “Classic Hits Radio” over the previous number of years, the fragility of its listenership base and the fact that the defendant’s new radio station, (which would be trading under the name “Greatest Hits Radio”) would infringe the plaintiff’s trademark, “Classic Hits”. It submitted that the defendant’s actions in using the name “Classic Hits Radio” raised a fair issue to be tried that it amounted to passing off, that damages would not be an adequate remedy and that the balance of convenience was in favour of granting the injunction. In particular, the plaintiff emphasised that it sought an urgent ex parte injunction in circumstances where, if it did not obtain such an order, it anticipated that it could be a number of weeks before it would obtain a hearing for an interlocutory injunction, and, that if the defendant were allowed to commence trading within the State using the name “Classic Hits Radio”, it could cause significant and irreparable damage to the plaintiff.

7. In the circumstances, I made an order granting the interim injunction sought by the plaintiff but directing (1) that the said injunction was not to come into effect until 1 pm on Monday 23rd June, 2025 and (2) that the notice of motion would be made returnable for 11am Monday 23rd June, 2025 (i.e. on the next court day).

8. I made the order in these terms so that (i) the plaintiff would have the benefit of an interim injunction as and from Monday 23rd June, 2025; (ii) the defendant would have time to come into court on Monday 23rd June to contest the terms of the injunction if it so wished and (iii) the defendant would have time to take such steps as were necessary to ensure compliance with the order between Friday 20th June, 2025 and Monday 23rd June, 2025 at 1 pm.

9. On Monday 23rd June, 2025, the matter came before me again. On that date, counsel for the defendant indicated that the defendant intended to take a pragmatic view of the situation and, given the time and expense in trying to get a hearing for an interlocutory injunction, it had decided that, although it was not consenting to the interim injunction continuing, it would not seek to contest the interim injunction at the interlocutory stage and that it would instead seek an early trial date. As this seemed a sensible approach to take, I gave directions for expedited pleadings (including discovery) and indicated that it might be possible to obtain a trial date in December 2025.

10. However, importantly, counsel for the defendant indicated that although his client would abide by the injunction which restrained it from using the brand name “Greatest Hits Radio” on its radio station in Ireland, it intended to trade using the initials “GHR”, both in its announcements and jingles on the radio station, and in its logo and advertising for its radio station, until the trial of the action. The defendant also indicated that it intended to rely on the plaintiff’s undertaking as to damages.

11. Counsel for the plaintiff indicated that he was somewhat taken aback by the suggested approach of the plaintiff and that he would need to take instructions on this matter. In the circumstances I adjourned the matter for three days until Thursday 28th June, 2025 in order to allow the plaintiff to consider its position.

12. When the matter came back before the Court on 28th June, 2025, counsel for the plaintiff indicated that the plaintiff was unhappy that the defendant was continuing to trade using the initials “GHR”. Counsel submitted that:

(1) the defendant’s use of the initials “GHR” was clearly caught within the express terms of the interim injunction and/or

(2) if not, the plaintiff would consider applying for an extension of the injunction to include the initials “GHR”.

13. In the circumstances, I directed the plaintiff to file a further affidavit setting out its position on this issue, and the defendant to furnish a replying affidavit setting out its position. I also indicated that I would hear this matter on Wednesday 9th July, 2025.

The hearing on 9th July, 2025

14. At the hearing on 9th July, 2025, counsel for the plaintiff indicated that its application was for an injunction to restrain the defendant from using the initials “GHR” on its radio station and that he was making this application based on two grounds:

(i) that the defendant’s use of the initials “GHR” was already within the terms of the interim injunction which had been granted by the Court on 20th June, 2025 and

(ii) that, if the Court did not accept this submission, he was making an application for an extension of the interim injunction based on the usual criteria for such an application (i.e. that there was a fair question to be tried, that damages were not an adequate remedy and that the balance of convenience/balance of justice was in favour of extending the injunction to include the initials “GHR,” until the trial of the action).

15. This application was contested by the defendant. Does the interim injunction granted by the Court extend to restraining the defendant from using the initials “GHR”?

16. The first issue to be considered therefore is whether the interim injunction granted on

20 June, 2025 included the initials “GHR”.

17. The question that arises is whether the terms of this injunction restraining the defendant from using its brand name “Greatest Hits Radio” also extends to using the initials “GHR”.

18. Counsel for the plaintiff argued that it was clear, when one looked at the advertising logo for “Greatest Hits Radio”, that it consisted of two parts. These were (1) the initials “GHR” on the left, and the words “Greatest Hits Radio” on the right. He submitted that the initials and the words were inextricably linked in the defendant’s logo and therefore the injunction in capturing the words “Greatest Hits Radio” must also be interpreted as covering the initials “GHR”. (I have attached the defendant’s logo as it was before the injunction at exhibit 1 to this judgment.)

19. Counsel for the defendant rejected this submission. He argued that it was clear on the face of the order as perfected that the order only restrained the defendants from using the brand name “Greatest Hits Radio” and did not restrain the defendants from using the initials “GHR”.

20. He submitted that the injunction prohibited the use of a specific sequence of three words (i.e. “Greatest Hits Radio”) whereas “GHR” was a set of three letters, and therefore, as a matter of interpretation, it did not fall within the terms of the injunction.

21. He also relied on the statements of Clarke J. (as he then was) in P. Elliot & Co. Ltd v. Building and Allied Trades Union [2006] IEHC 340 at para. 3.3: “Courts strive to ensure that orders made are clear in their terms. It is particularly important in cases where a party may be exposed to the risk of severe sanction for breach of an order that it be clear to that party what they can, cannot or must do. However despite the best efforts of all concerned it does remain the case that on certain occasions it may not be absolutely clear as to what is or is not within the scope of a binding order of the court. In those circumstances I am satisfied that, having regard to the penal nature of the contempt jurisdiction, a party could not be said to be in contempt of a court order where, objectively speaking, there was reasonable doubt as to whether the actions complained of came within or without the scope of the order concerned. I should emphasise that, in my view, the relevant test is an objective one. Would a reasonable and informed person, having had sight of the court order, come to the view that the acts complained of were legitimate having regard to that order.” (Emphasis added).

22. I have also had regard to Muller v. Shell EMP Ireland Ltd [2010] IEHC 238 in which Kearns J. stated: “If there are two interpretations reasonably open, then that most favourable to the defendants should be applied”.

23. Although these cases deal with contempt of court issues, I am of the view that similar principles apply to the interpretation of the injunction in this case.

24. I am satisfied that the wording of the original interim injunction as sought, and as granted by the Court, does not extend to, or include, the initials “GHR”. I say this for a number of reasons:

(i) it is clear from a plain reading of the interim injunction, that the injunction was to restrain the defendant from using the brand name “Greatest Hits Radio”;

(ii) the injunction did not seek to enjoin the defendant from using the initials “GHR”; (iii)I do not believe that “a reasonable and informed person, having had sight of the court order would come to the view” that if the defendant used the initials “GHR” it would be acting in breach of the court order;

(iv) there was no ambiguity on the face of the injunction but, even if there were, the defendant was entitled to the benefit of the doubt in respect of the interpretation of the order.

(v) Mr. Kevin Brannigan swearing the grounding affidavit for the plaintiff stated at para. 55: “I say that the ‘get up’ of the two stations is not an issue for the plaintiff. To be clear, it is the confusion that inevitably flows from the similarity of the names that is the issue, not the design of the logo (or for that matter the fact that the kind of music is similar and the target audience is the same). For completeness I beg to refer to the two logos which are at Tab 13 of the exhibit book”.

(vi) the two logos were exhibited at Tab 13 of the plaintiff’s grounding affidavit. The existing logo of the defendant is set out at exhibit 1 to this judgment and sets out the initials (on the left hand side) and the words “Greatest Hits Radio” (on the right hand side). The plaintiff therefore was fully aware of the defendant’s logo and its design when it made its ex parte application. It was clear in its ex parte application that the heart of its objection to the defendant was not the design of the logo but rather the “confusion that inevitably arose from the similarity of the names”. This is an averment of considerable importance in this matter. The plaintiff limited its injunction application to an injunction to restrain the use of the words “Greatest Hits Radio”. It did not seek at the interim stage to apply for, or obtain, an injunction to restrain the defendant from using the initials “GHR”.

25. I would therefore conclude that the defendant’s use of the initials “GHR” does not come within the terms of the interim injunction granted by the Court on 20th June, 2025.

The plaintiff’s second argument – that it is entitled to an extension of the injunction to restrain the defendant from using the initials “GHR”

26. The plaintiff’s second argument is that even if the initials “GHR” do not fall within the terms of the original Court order, it is entitled to an injunction to restrain the defendant from using the initials “GHR” until the trial of the action.

27. In order for the plaintiff to be successful in this application, it would of course have to fulfil all the relevant criteria for the grant of an interlocutory injunction set out by the Supreme Court in the decision of Merck Sharp & Dohme Corp v. Clonmel Healthcare Ltd [2019] IESC 65 in which O’Donnell J. (as he then was) stated as follows: “Legal principles applicable to the grant of interlocutory injunction […]

64 Finally, at the risk of perhaps creating a further rule that will require subsequent qualification and correction, it may be useful to outline the steps which might be followed in a case such this:—

(1) First, the court should consider whether, if the plaintiff succeeded at the trial, a permanent injunction might be granted. If not, then it is extremely unlikely that an interlocutory injunction seeking the same relief upon ending the trial could be granted;

(2) The court should then consider if it has been established that there is a fair question to be tried, which may also involve a consideration of whether the case will probably go to trial. In many cases, the straightforward application of the American Cyanimid and Campus Oil approach will yield the correct outcome. However, the qualification of that approach should be kept in mind. Even then, if the claim is of a nature that could be tried, the court, in considering the balance of convenience or balance of justice, should do so with an awareness that cases may not go to trial, and that the presence or absence of an injunction may be a significant tactical benefit;

(3) If there is a fair issue to be tried (and it probably will be tried), the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice;

(4) The most important element in that balance is, in most cases, the question of adequacy of damages;

(5) In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy;

(6) Nevertheless, difficulty in assessing damages may be a factor which can be taken account of and lead to the grant of an interlocutory injunction, particularly where the difficulty in calculation and assessment makes it more likely that any damages awarded will not be a precise and perfect remedy. In such cases, it may be just and convenient to grant an interlocutory injunction, even though damages are an available remedy at trial.

(7) While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial;

(8) While a structured approach facilitates analysis and, if necessary, review, any application should be approached with a recognition of the essential flexibility of the remedy and the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined.”

The parties

28. Before I consider these criteria, I will briefly outline the parties:

29. The Plaintiff is the legal entity which owns the radio station “Classic Hits Radio”. It is part of the Group which owns Radio Nova and Sunshine 106.8. Each radio station is owned by a separate private limited company. Classic Hits Radio is owed by Choice Broadcasting Ltd, which, in turn, is owned by Bay Broadcasting Ltd, which is the overall parent company.

30. Classic Hits Radio is a well-established brand in the Irish radio market. The radio station has been broadcasting as “Ireland’s Classic Hits Radio” for the last three years, but the station has used “Classic Hits” in its brand name since 2011.

31. The defendant is a global multimedia company headquartered in Hamburg, Germany which has been run by the same family for 150 years. It was originally founded in 1875 as a small printing house and has since grown to become one of the largest publishers and commercial broadcasters in Europe. In Ireland, the defendant manages a portfolio of eight FM radio stations including Today FM, Newstalk, 98FM, Spin 1038, Spin South West, Cork’s Red FM, iRadio and Beat. The defendant is also the owner of the brands “Greatest Hits Radio” and “GHR”, both of which it launched in the United Kingdom in 2019. According to the defendant’s affidavit, the “Greatest Hits Radio” and “GHR” brands are part of Bauer’s audio brand portfolio and are companion brands to its more contemporary “Hits Radio Network” radio service. The GHR Network of stations in the United Kingdom has a combined weekly reach of 7.1 million listeners and includes over 50 local and regional radio stations operating throughout England, Scotland, Wales and Northern Ireland. Is there a fair question to be tried?

32. It is clear that the first issue which the plaintiff must establish is that there is a fair question to be tried that the defendant’s use of “GHR” (i) amounts to passing off or (ii) infringes the plaintiff’s trademark. I will consider the passing off issue first.

Is there a fair issue to be tried that the defendant’s use of the initials “GHR” in its logo amounts to passing off?

33. The leading case in passing off is the Supreme Court decision of McCambridge Ltd v. Joseph Brennan Bakeries [2012] IESC 46. McMenamin J. giving the judgment of the Court stated at para. 19 of his decision as follows: “19. It is common case that the applicable criteria for establishing passing off are to be found in the “triple test” laid down by the House of Lords in Reckitt and Coleman Products Limited v. Bordan Inc. [1990] 1 W.L.R. 491. Lord Oliver of Aylmerton explained the three aspects of the test in the following way at p. 499 of his judgment: “The law of passing off can be summarised in one short general proposition – no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying “get up” (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get up is recognised by the public as distinctive specifically of the plaintiffs’ goods and services. Secondly he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff’s identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with the particular source which is in fact the plaintiff.

For example, if the public is accustomed to rely upon a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name. Thirdly, he must demonstrate that he suffers or, in a quia timet action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff.”

34. In Jacob Fruitfield Limited v. United Biscuits (UK) Limited [2007] IEHC 368, Clarke

J. (as he then was) paraphrased the three elements of the test as being:

(a) the existence of a reputation or goodwill in the claimant’s product including, where appropriate, in a brand name or get up;

(b) the risk of confusion between what is alleged to be the offending product and the claimant’s product; and

(c) whether damage to the claimant’s goodwill or reputation by virtue of any such confusion has been established.

35. The plaintiff accepted at the outset that it was not seeking to argue that the “get-up” of the plaintiff’s product and the defendant’s product were the same. It submitted that this was a case of passing off based on the brand not on the “get-up” of the products.

36. It is however instructive to consider the revised logo of the defendant (which is now to be used between the granting of the ex parte injunction and the trial of the action) and to compare it to the plaintiff’s logo.

37. I would make the following observations in respect of these two logos:

(i) the plaintiff’s logo is “Ireland’s Classic Hits Radio”; the defendant’s logo is three initials “GHR”;

(ii) the plaintiff’s logo consists of four words – “Ireland’s Classic Hits Radio”; the defendant’s logo contains no words – just three initials;

(iii) the plaintiff’s logo contains no initials; the defendant’s logo only contains initials;

(iv) the plaintiff’s logo has a purple background; the defendant’s logo has a yellow background; and

(v) the colours used in the plaintiff’s logo are purple, orange, white and pink; the colours used in the defendant’s logo are blue, black and yellow.

38. It is clear therefore that the “get-up” of the defendant’s logo has no similarity whatsoever to the plaintiff’s logo.

39. It is also clear, based on the “get-up” of the defendant’s logo, that it could not be said that the defendant’s radio station was passing off the defendant’s radio station as that of the plaintiff.

Is there a fair issue to be tried that the defendant’s initials “GHR” amounts to a passing off of the defendant’s brand as that of the plaintiff?

40. Counsel for the plaintiff submitted that this was a passing off case involving brands – not the “get-up” of the products. The issue therefore is whether the plaintiff has established that there is a fair question to be tried in relation to the passing off of brands.

41. The plaintiff relied on the case of Galway Free Range Eggs Ltd v. Kevin O’Brien and Others [2019] IECA 8, a decision of the Court of Appeal. This was a case in which the plaintiff sold eggs under the brand name “Galway Free Range Eggs” and the defendant began selling eggs under the brand name “O’Briens of Galway Free Range Eggs”. The plaintiff applied for an interlocutory injunction but was refused by the High Court. The substantive proceedings were heard by the High Court which dismissed the plaintiff’s claim. The Court of Appeal however reversed the decision of the High Court.

42. In this case, Costello J. (as she then was) giving the judgment on behalf of the Court, stated at paragraph 27: “The approach of the High Court judge to the case, by emphasising the get up of the egg boxes, rather than by focussing on the brand name ‘Galway Free Range Eggs’ was to misjudge the actual case before him.” (emphasis added).

43. At paragraph 28 of her judgment, Costello J. referred to O’Neill’s Irish International Sports Company Ltd v. O’Neill’s Footwear Drier Company Ltd [1997] IEHC 75 where Barron J. held as follows: “The nature of this tort is to be found in its name. The wrong is that of passing-off ones goods as those of another. This can be done by similarity of name, appearance, get-up or any other similarity which achieves the same purpose. How it is done is immaterial so long as the similarity is calculated to deceive those who might buy or otherwise deal in the goods. Deliberate intention is not necessary.” (emphasis added).

44. In this case, the “any other similarity which achieves the same purpose” is, (according to the plaintiff) the use by the defendant of the initials “GHR”.

45. As Costello J. stated at paragraph 36 of her judgment: “ In cases such as this one, the ‘get up’ or packaging of the product is largely irrelevant to the determination of the issue. The appellant said that the case was about the decision of the respondents to market their produce in such a manner as to run the words ‘Galway’ and ‘Free Range Eggs’ together in such a way as to tend to confuse consumers or indicate a link between the respondents’ produce and the appellant’s brand.”

46. The Court of Appeal concluded that the plaintiff was entitled to an injunction to restrain the defendant from trading under the name “O’Briens of Galway Free Range Eggs”.

47. However it is necessary to distinguish the Galway Free Range Eggs case from the present case. One can readily see how the Court of Appeal came to its conclusion that for the defendant to use the brand name “O’Briens of Galway Free Range Eggs” would amount to passing off of the plaintiff’s products “Galway Free Range Eggs”. Likewise, in the present case, there is certainly a fair issue to be tried that the defendant’s use of the phrase “Greatest Hits Radio” would amount to a passing off of the plaintiff’s radio station “Classic Hits Radio”. However the question I have to address is whether the initials “GHR” amount to passing off.

48. Costello J. also stated at paragraph 31 of her judgment: “Laffoy J. referred to the decision of Kenny J. in the Supreme Court in C & A Modes v. C & A (Waterford) Limited [1976] I.R. 198 at 214 as follows: - ‘The legal wrong known as passing-off includes the incorporation in the Republic of Ireland of a company with a name likely to give an impression to the public that it is a subsidiary or branch of or is associated or connected with another company which has an established goodwill, whether the latter company is incorporated in the Republic or outside it.’”

49. At paragraph 34 of her judgment Costello J. stated: “From this I conclude that the test to be applied when considering whether a claimant’s reputation or goodwill in a brand name is infringed by that of the impugned brand name (as opposed to the get up of the product) is: ‘Is there a real likelihood that the public would get an impression of a connection between the business of the appellant and the business of the respondents?’ The evidence may be assessed by reference to the name alone” (emphasis added).

50. It appears that cases involving passing off in respect of a brand name are slightly different to cases of passing off in relation to the “get up” of the products. The test, as enunciated by the Court of Appeal, is whether there is a real likelihood that the public would get an impression of a connection between the business of the appellant and the business of the respondent.

51. I turn therefore to apply that test in the present case. The question then is: is there a real likelihood that the public would get an impression of a connection between the business of the plaintiff (with its brand name of “Classic Hits Radio”) and the business of the defendant (with its brand name “GHR”). As Costello J. states, the evidence may be assessed by reference to the name alone.

52. I am of the view that there is little or no likelihood that the public would get the impression of a connection between the business of the plaintiff and the business of the defendant solely by reference to the initials “GHR”.

53. First, I am of the view that the initials “GHR” are in fact easily severable from the words “Greatest Hits Radio” in the defendant’s logo. They are not inextricably linked as the plaintiff contends.

54. Secondly, if the plaintiff’s brand was “CHR” (standing for “Classic Hits Radio”) then the plaintiff’s submissions would have some force. But the plaintiff does not use initials in its branding – only words.

55. Thirdly, I am of the view that the reasonable consumer or “the public” when faced with the juxtaposition of the defendant’s brand (the initials “GHR”) would not confuse that with the plaintiff’s brand “Classic Hits Radio” or “Irelands Classic Hits Radio”.

56. In the circumstances, I have come to the conclusion that the plaintiff has not raised a fair issue to be tried on this matter.

Infringement of trademark

57. The plaintiff also submitted that its application was for an injunction to restrain an infringement of its trademark.

58. In this regard, it is important to have regard to the precise trademark which has been registered by the plaintiff. This was exhibited in the plaintiff’s grounding affidavit. The description of the mark is stated to be “Classic Hits”. In other words, the mark consists of nothing else apart from two words – “Classic Hits”.

59. Section 14(2) of the Trade Marks Act 1996 provides: “A person shall infringe a registered trade mark if that person uses in the course of trade a sign where because—

(a) the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered, or

(b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association of the sign with the trade mark.”

60. The defendant submitted that EU case law has established certain clear principles regarding the assessment as to whether there is a likelihood of confusion between two marks. In Cofresco Frischalterprodukte GmbH & Co. KG v. Controller of Patents [2007] IEHC 187, Finlay Geoghegan J endorsed the following summary of those principles:

“1 In determining and assessing the likelihood of confusion for the purpose of s. 10(2)(b), account must be taken of all the circumstances of the case, including the degree of similarity between the two marks and between the goods or services, the likelihood that the public will make an association between the earlier mark and the mark in respect of which registration is sought, and the distinctiveness of the earlier mark ( Sabel v. Puma (Case C-251/95) [1997] E.C.R. I-6191, para. 22).

2 In assessing the degree of similarity between two marks, the decision maker must determine the degree of visual, aural and conceptual similarity between them and, where appropriate, evaluate the importance to be attached to those different elements, taking account of the category of goods or services in question and the circumstances in which they are marketed ( Lloyd Schuhfabrik Meyer v. Klijsen Handel (Case C-342/97) [1999] E.C.R. I-3819, para. 27). For this purpose, the average consumer is deemed to be reasonably well informed, reasonably observant and circumspect (Lloyd Schuhabrik Meyer v. Klijsen Handel (Case C-342/97), para. 26).

3 The visual, aural, and conceptual similarities of the marks must be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components. Each mark must be viewed as a whole and should not be dissected for the purposes of a comparison. This is because the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (Sabel v. Puma (Case C-251/95) [1997] E.C.R. I-6191, para. 23).

4 The higher the degree of distinctiveness of the earlier trademark the greater the protection granted to it and vice versa (Sabel v. Puma (Case C-251/95) [1997] E.C.R. I-6191, para. 24); Canon Kabushiki Kaisha v. Metro-Goldwyn- Mayer (Case C-39/97) [1998] E.C.R. I-5507, para. 18). Distinctiveness may be inherent or enhanced by a reputation which the mark enjoys on the market (Canon Kabushiki Kaisha v. Metro-Goldwyn-Mayer (Case C-39/97), para. 18).” (emphasis added).

61. This was followed by McGovern J. in Allergan Inc v. Ocean Healthcare Ltd [2008] IEHC 189, and by Twomey J. in Nutrimedical BV v. Nualtra Ltd [2017] IEHC 253, s. 22.

62. The question therefore I have to consider is whether there is a fair question to be tried that the defendant is infringing the trademark of the plaintiff.

63. It is clear from the section 14(2) of the Trademarks Act, 1996, set out above that the plaintiff’s trademark could be infringed if:

(1) the defendant’s sign is identical with the trademark and is used in relation to goods or services similar to those for which the trademark is registered or

(2) the sign is similar to the trademark and is used in relation to goods or services identical with or similar to those for which the trademark is registered and

(3) there exists “a likelihood of confusion on the part of the public”.

64. The question of whether there is a likelihood of confusion is to be determined by the “overall impression” created as between the respective marks or signs, while taking into account all factors relevant to the circumstances.

65. It is clear in the present case that the defendant’s sign “GHR” is not identical with the trademark of the plaintiff which, as stated above, consists of the words “Classic Hits”.

66. I am also satisfied that the defendant’s sign “GHR” is not similar to the plaintiff’s trademark.

67. The plaintiff, in its submissions to the Court, placed some emphasis on the “conceptual” similarity between them. The plaintiff submitted that “GHR” and “Greatest Hits Radio” was an established mark in the UK and the defendant was now seeking to bring this mark to Ireland. It was operating in the same business sector (namely the operation of a radio station playing greatest hits or classic hits). It appears that both radio stations are aimed at the same demographic (i.e. persons over 45 to 50 years of age). The plaintiff argued that the initials “GHR” were inseparable from the words “Greatest Hits Radio” and therefore must be regarded as one and the same. As such, it said, if the defendant continued to use the initials “GHR” there would be such a conceptual similarity between the initials and the plaintiff’s Classic Hits Radio that there was a likelihood of confusion in the minds of the average consumer.

68. The defendant submitted that the plaintiff must establish that there is visual, aural and conceptual similarity – not just conceptual similarity alone – in other words that the test is cumulative, not disjunctive.

69. This is supported by the fact that at para. 3 Finlay Geoghegan J. states that: The visual, aural, and conceptual similarities of the marks must be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components. Each mark must be viewed as a whole and should not be dissected for the purposes of a comparison. This is because the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.”

70. In the present case, there is clearly no visual or aural similarity between the plaintiff’s logo and the defendant’s logo.

71. I am also satisfied that there is no conceptual similarity between the initials “GHR” and the words “Classic Hits Radio”.

72. If it is not identical, and if it is not similar, I would conclude that there does not seem to be a likelihood of confusion on the part of the public.

73. In the circumstances I am of the view that the plaintiff has not established that there is a fair question to be tried that the logo or initials to be used by the defendant – “GHR” – is infringing the trademark of the plaintiff.

Balance of justice/balance of convenience

74. I have also considered the balance of justice in this case. First, it is a fact that the plaintiff has the benefit of an interim injunction restraining the defendant from using its brand name and logo “Greatest Hits Radio” in Ireland until the trial of the action. This is a factor which, in my view, must be given full weight in any assessment of the balance of justice.

75. Secondly, the defendant should be allowed to compete using its initials “GHR” until the trial of the action. The inconvenience or injustice occasioned to the plaintiff by allowing the defendant to do that is outweighed by the inconvenience to the defendant of refusing to allow it do so.

76. Thirdly, the plaintiff submitted that the initials “GHR” would beg the question in the minds of the listeners as to what these initials stand for. However, the defendant has stated on affidavit that it would not supply an answer to this question. Mr. Chris Doyle, in his first affidavit on behalf of the defendant stated at para. 11: “11. I understand that, at the hearing on 27 June 2025, the Court enquired how the Defendant would respond to a query from a caller as to what GHR stands for. It is important for context that the Court is aware that Bauer’s DAB+ service does not take on-air calls from listeners. However, if this was not the case and if a caller was somehow to query what GHR stands for, whether on-air or not, or whether by way of query to any staff member of Bauer, Bauer would not state that it is an acronym for Greatest Hits Radio. It would merely state that GHR is a brand of Bauer. To be clear, Bauer has not made publicly available any way for an individual (audience or otherwise) to contact Greatest Hits Radio (now GHR). Such individual would need to know that the station was run by Bauer and reach out to us directly.”

84. Further, Mr. Doyle for the defendant stated in his affidavit: “66. The suggestion at paragraph 19 of the Supplemental Affidavit that an Irish consumer will (a) assume that “GHR” is an acronym and (b) instinctively ask “what does it stand for?” is unfounded and speculative at best. Countless well-known threeletter brands on the market are not acronyms and are widely recognised for their three-letter words alone. For example, it is clear that the telecommunications companies “EIR” and “SKY”, the sheepskin boots brand “UGG”, the clothing brand “GAP”, and the media platform “FOX” are not acronyms. Moreover, the full title of many recognisable brands, that are commonly known by their abbreviated titles such as GHD, H&M, IKEA, FIAT, LEGO, are either not known by or questioned by the general public, despite said brands being acronyms. This clearly illustrates that consumers do not necessarily interpret three-letter brand names as being acronyms, nor do they routinely seek to understand what they stand for.

67. Further, at paragraph 19 of the Supplemental Affidavit, Mr. Branigan avers to there being “no other radio stations on the air in DAB or FM format at the moment which solely use an acronym of its name as its brand name”. This is factually incorrect. There are a number of other Irish radio stations that similarly are known for an acronym of their brand name alone, namely WLR, KCLR, and LMFM.

68. The absence of consumer confusion is further underscored by Google search results for the term “GHR”. Contrary to Mr. Branigan’s assertion at paragraph 16 of the Supplemental Affidavit that “GHR” can only refer to “Greatest Hits Radio”, a simple Google search reveals that “GHR” is associated with a variety of unrelated entities, including Griffith Halls of Residence, GHR Consulting, and the General Hypnotherapy Register. Notably, no search results for GHR reference Greatest Hits Radio. Further, a direct search for the domain “ghr.ie” leads exclusively to Griffith Halls of Residence, reinforcing the fact that “GHR” is not uniquely or predominantly associated with Greatest Hits Radio. I beg to refer to screenshots of the aforementioned searches under Tab 14 of Exhibit CD1.”

85. Finally, Mr. Doyle stated at para. 113: “113. For the avoidance of any doubt, Bauer fully understands the import of the Order made by this Honourable Court on 20 June 2025. For as long as that Order remains in force, Bauer will ensure that no query directed to it concerning what the letters “GHR”, in the name of the station currently being broadcast by it on the DAB+ service, stand for will be answered in any way that adopts the words “Greatest Hits Radio”.”

86. I am of the view that these averments on affidavit – particularly the last one – are important. In my view, these are relevant considerations to take into account on the balance of convenience.

87. I have therefore concluded that even if the plaintiff had persuaded me that there was a fair issue to be tried on whether the initials “GHR” amounted to passing off, I am satisfied that the balance of justice/convenience is in favour of refusing the relief sought.

The undertaking as to damages

88. Although I have concluded that there is no fair issue to be tried and that the balance of justice is in favour of refusing to extend the injunction, the issue of the undertaking as to damages is relevant to this application and also to the interim injunction. The defendant in its submissions raised a number of issues about the adequacy of the plaintiff’s undertaking as to damages in respect of this injunction application. These issues are:

1. the state of the plaintiff’s balance sheet and the debt to the parent company;

2. the Revenue debt; and

3. the charge created by the company.

89. I will deal with each of these in turn.

The balance sheet and the debt to the parent company

90. The first issue raised by the defendant is that when one looks at the balance sheet of the plaintiff for the last set of audited accounts (as at 31st December, 2023), it is clear that the plaintiff has a net deficit of total assets less current liabilities in the sum of €6.6 million, approximately and that it is therefore balance sheet insolvent.

91. The defendant submitted that it was unclear what those liabilities were and that this had never been explained to the Court on affidavit.

92. Counsel for the plaintiff submitted that he was taken by surprise by this submission and complained that the defendant kept moving the goalposts in its submissions on the undertaking as to damages. In the circumstances, I granted the plaintiff an adjournment to allow it to file a further affidavit from its accountant setting out how this figure of €6.6 million was calculated.

93. As a result, Mr. Kevin Brannigan for the plaintiff, swore a third affidavit on 14th July, 2025 dealing with these matters. He stated at paragraph 7 of his affidavit: “The defendant’s counsel sought to make much in court of the amount falling due to creditors within one year. The total sum in this regard in 2023 was €7,582,333 (I am referring to page 12 of the abridged financial statements which I exhibited to my second supplemental affidavit). The smallest element of this sum comprises trade creditors and tax. The largest part of this sum - €6,060,253 – relates to “other creditors”. What the defendant did not know and could not have known is that “other creditors” represents the plaintiff’s parent company.”

94. At paragraph 8 Mr. Brannigan states: “As the court knows – because I referred to the plaintiff’s parent company, Bay Broadcasting Ltd (“Bay”) at paragraph 4 of my grounding affidavit – the plaintiff has a parent company, which is Bay. The plaintiff is 99% owned by Bay. Bay also owns 46% of the shares in Star Broadcasting Ltd, a company which operates the radio station Sunshine 106.8 and owns 100% of the shares in Classic Rock Broadcasting Ltd, a company which operates the radio station Radio Nova.”

95. At paragraph 9 he states: “In brief, Bay invested moneys in the plaintiff over a period of years, and for a number of years – as Mr. Hanrahan states in his affidavit – the plaintiff was not a profitable entity. It was being supported by Bay because we believed that ultimately it would become profitable. This is not at all unusual, in my experience: as I have said before, it takes time to build a brand. It is for this reason that the plaintiff’s accounts contain the reference to creditors in excess of €6 million. It is the case that each year, this tranche of debt is simply “rolled over”. To be clear: Bay is not “calling it in” as might happen if the debt were owned by an external third party. By external I mean not an entity which is part of the group.”

96. At paragraph 11 he states: “Less there be any doubt, Bay does not have any intention of ‘calling in’ the plaintiff’s indebtedness. This would be commercial suicide for the plaintiff’s brand and would make no commercial sense for the group: if the plaintiff were to become insolvent it would lose its broadcasting licence. Its value is in the licence and Bay would not do anything to jeopardise that.”

97. Mr. Brannigan also stated that he asked the plaintiff’s auditor to carry out a review of the abridged financial statements for the year ended 2023. The auditor prepared a letter over the weekend which provided a detailed explanation of the 2023 audited accounts and specifically addressed the issue of “creditors falling due within twelve months”. This letter was exhibited to the affidavit. In this letter dated 11th July 2025, the plaintiff’s auditors state as follows: “Creditors – amounts falling due within one year. The amount as of 31st December, 2023 is as follows €7,582,333. This consists of the following:

• Shareholder loans owed to Bay Broadcasting in the amount of €6,060,253;

• Participator loans owed to Star Broadcasting in the amount of €68,780;

• Other creditors €7,118;

• Trade creditors in the amount of €133,611;

• Accruals of €199,039;

• Taxation €1,113,562.

The shareholder loans of €6,060,253 were previously not covered by loan agreements between Bay and Choice so the directors took the view that they were then payable on demand and should be classified as short term and due within six months.”

98. He also stated: “In July 2024 the directors made the decision to formalise these shareholder loans and they will be presented in the 2024 accounts which are due in September as long term debt”.

99. It is clear therefore from the above evidence that the plaintiff has the following liabilities:

1. it owes a sum of in excess of €6 million to its parent company; and

2. it owes a Revenue debt of in excess of €1.1 million.

100. The defendant submitted that this affidavit evidence merely strengthened its concerns that the plaintiff was, or could be regarded as, “balance sheet insolvent” and therefore that its undertaking as to damages was of little or no value to the defendant.

101. The plaintiff submitted in reply that this was a debt owed to the parent company and not to any outside creditor, that it would be “commercial suicide” for the parent company to call in these loans and that it had no intention of doing so.

102. However, I am of the view that even though this six million euro debt is a debt owed to the parent company, one could readily envisage a situation in which the parent company would cease to support the plaintiff (e.g. if the plaintiff were to lose these proceedings and had to make good on its undertaking as to damages). In those circumstances, it is possible that the plaintiff could go into liquidation and the defendant would be unable to obtain any damages pursuant to the plaintiff’s undertaking.

The Revenue debt

103. The second issue about which the defendant was concerned was, it said, that the company owed a debt to the Revenue Commissioners in excess of €1.1 million. The plaintiff submitted that the plaintiff had made €1.4 million in operating profit over the last twelve months and that the Revenue debt was a warehoused debt which would be paid back over time. Indeed the letter from the plaintiff’s accountant dated 11th July, 2025, stated that the last audited accounts (for the year ended 31st December, 2023) showed that the plaintiff returned a profit for the year of over €1.4 million, and that for the year ended 31st December, 2024, management accounts show that stations operated by the parent company made over €1.7 million in profit. I am satisfied with these explanations and I am of the view that the Revenue debt alone would not cause me to question the plaintiff’s undertaking as to damages.

The charge

104. The third issue raised by the defendant was a charge entered into by the defendant (details of which are set out at page 533 of the booklet of papers). The plaintiff created a charge, by way of first fixed charge and assignment, over its real property, its plant, its licences, its intellectual property, its agreements, its insurance, its life policies, its bank accounts, its book debts, its securities and its uncalled capital and goodwill. The type of charge which was created was a mortgage debenture dated 19th July, 2024 between the plaintiff (and its parent company) and Duke Royalty UK Ltd, (“Duke”), a UK lender based in England. It would appear from this charge that the plaintiff has mortgaged all of its assets to Duke and that this charge is still in force. The defendant submits that it appears from this charge that, if the plaintiff were to default on any of its repayments, all the assets of the plaintiff would be taken by the lender in satisfaction of the company’s debt to the lender, leaving the plaintiff with no assets to satisfy the undertaking as to damages given by the plaintiff. I am of the view that this is a relevant consideration to be taken into account in assessing the undertaking.

105. The defendant also submitted that the plaintiff had not put before the Court the plaintiff’s most recent management accounts to give an assurance to the Court, and to the defendant, in respect of the plaintiff’s undertaking as to damages. The plaintiff objected to this, because, it said, the defendant is the plaintiff’s largest and closest direct competitor in the Dublin radio market and that providing management accounts to the plaintiff would cause significant damage to the plaintiff. I agree with this submission. In my view, the defendant is not entitled to see these management accounts at this stage particularly as the plaintiff’s audited accounts for the year 2024 will soon become publicly available.

106. However, on balance I am of the view that the defendant’s concerns on the undertaking are well-founded and, had I agreed to extend the injunction, the plaintiff’s undertaking as to damages would have needed to be fortified.

The requirement for a fortified undertaking

107. One of the matters about which a plaintiff has to satisfy a court in order to obtain an interlocutory injunction is to give an undertaking as to damages. If that undertaking as to damages has no substance, or, if it appears on the evidence before the Court, that it might prove insufficient, then the plaintiff needs to provide a fortified undertaking as to damages in order to satisfy the Court on this point.

108. I note that the plaintiff has indicated that its parent company is prepared to offer a fortified undertaking as to damages.

109. The defendant submits however that even this is not satisfactory because there is no evidence before the court as to the parent company’s financial ability to meet an undertaking as to damages.

110. Both parties referred to the case of Bristol Myers Squibb Holdings Ireland Unlimited Company v. Norton (Waterford) Ltd trading as Teva Pharmaceutical Ireland, [2024] IECA

49 a decision of the Court of Appeal of 1st March, 2024. The issue in the Court of Appeal in that case was different to the issue before me. The issue in the Court of Appeal was whether the High Court should have required the plaintiff to extend the undertaking as to damages to other companies who were not the defendant and who were not party to the proceedings but who might suffer loss as result of the injunction sought. However, the Court of Appeal also set out the principles governing the undertaking as to damages.

111. As was stated by Costello J. (as she then was): “21. The legal principles in relation to an undertaking as to damages were recently considered by Barniville J. (as he then was) in the High Court in Nolan v. Dildar Limited. [2020] IEHC 243 (“Nolan”). He first said that the purpose of requiring the party seeking the interim or interlocutory injunction to provide an undertaking as to damages is to strike a “fair balance between the respective rights of the party seeking the interim or interlocutory injunction and of the party against whom the orders are made”. He noted that the undertaking was described in Cheltenham & Gloucester Building Society v. Ricketts [1993] 1 W.L.R. 1545(“Cheltenham”) as the “price which the person asking for an interlocutory injunction has to pay for its grant”. This statement has been approved by Clarke J. (as he then was) in the High Court in Estuary Logistics v. Lowenergy Solutions Ltd. [2008] 2 I.R. 806 (“Estuary Logistics”) and by Laffoy J. in the High Court in Caldwell v. Tracey [2012] 2 I.R.

417 (“ Caldwell”).

22. Secondly, Barniville J. noted that the undertaking as to damages is given to the court and not to the party against whom the interlocutory injunction or order is made, citing Cheltenham, Estuary Logistics, Caldwell and the judgment of Peart J. in IBRC v. Quinn [2013] IEHC 437 (“IBRC”).

23. Thirdly, he observed that the undertaking as to damages is not intended to be a complete indemnity for “the parties affected by the orders made” (and referred to IBRC, para. 76)

[…]

25. Barniville J. observed at para. 237 that generally when receiving an undertaking as to damages and granting an interim or interlocutory injunction, the court must be satisfied of the ability of the party giving the undertaking to meet a claim on foot of it and that, in the exercise of its overall discretion, the court can refuse to grant an interlocutory injunction if it is not satisfied that the party giving the undertaking as to damages will be in a position to honour it: ( Martin v. An Bord Pleanála [2002] IEHC

82 and Szabo v. Kavanagh [2013] IEHC 491).

26. Furthermore, a party who gives an undertaking as to damages has an obligation to draw the attention of the court to any material change for the worse in its financial position. This is so because of the significance of the undertaking as to damages in the exercise by the court of its discretion as to whether to grant an interim or interlocutory injunction.

27. The seventh point Barniville J. identifies is particularly relevant to the issues in this appeal: ‘…[T]he onus of demonstrating to the court that the undertaking as to damages provided is or would be inadequate in terms of the losses which would be likely to be suffered as a result of the granting of the interim or interlocutory injunction rests with the party alleging such inadequacy. In other words, the party or parties against whom the interim or interlocutory injunction is granted and who seeks to challenge the adequacy of the undertaking as to damages must demonstrate evidentially the losses which they contend will be suffered as a result of the order for the purpose of demonstrating that the undertaking is inadequate.’ (emphasis added) He referred to the judgment of Hardiman J. in Dunne v. Dun Laoghaire Rathdown County Council [2003] 1 I.R. 567 (“ Dunne”) (which I discuss below) as illustrative of the “onus of proof which rests upon the…defendants to demonstrate the alleged inadequacy of the undertaking as to damages given by the plaintiffs and to the nature of the evidence required in order to substantiate their concerns in relation to the ability of the plaintiffs to meet any liability on foot of that undertaking.” (emphasis added).

28. He notes that in certain circumstances where the court has a concern in relation to the ability of a party to meet its obligation on foot of an undertaking as to damages, it may require the undertaking to be fortified or supported by some form of security or payment into court. He emphasises that this was not the normal situation and that the occasions when such a fortified undertaking might be required were “very few” and had to be supported by a “proper evidential basis”.

29. In principle, it is possible to apply to the court to revisit the issue as to the adequacy of the undertaking as to damages and the court may consider whether the undertaking should be adjusted, varied or fortified. In that regard he referred to changes in circumstances or “matters moved on”.

112. Costello J. also emphasised the importance of a party challenging the undertaking to provide evidence of this matter as she stated at para. 32: “32. The importance of evidence in support of a claim that the undertaking as to damages offered will not suffice adequately to compensate a defendant in the event that the injunction proves to have been “wrongly granted” was emphasised in Dunne. Hardiman J. was very explicit in identifying what is required of a party so contending.

In that case the defendant challenged the adequacy of the plaintiffs’ undertaking as to damages. Hardiman J. said at p. 581 of the report:

33. At p. 581 he held that: ‘…the purported damage and expense must, in my view, be established and not simply invoked…The mere mention of an enormous sum of money as the total cost of the scheme does not in any way constitute evidence as to the balance of convenience of this particular case. No doubt there will be inconvenience arising from the grant of an injunction but the defendant has not adduced evidence from which one could rationally assess whether this will be of a trivial, or of a near catastrophic nature.” (Emphasis added)

35. It is clear that the assessment of the undertaking as to damages and the argument that the undertaking offered is inadequate are central to the court’s decision whether or not to grant an injunction. Where there is a challenge to the adequacy of the undertaking as to damages offered, the court must be provided with evidence which enables it to “rationally assess” that challenge. A mere assertion is insufficient, there must be an evidential basis related to the specific relief sought or the specific liability for which the plaintiffs by virtue of their undertaking may become responsible.”

113. At paragraph 94, Costello J. came back to this point and stated:

“Insufficient evidence

94. A party who challenges the adequacy of the undertaking as to damages offered must assert why the undertaking is inadequate and must establish this by reference to evidence. This is clear from the decisions in Dunne and Nolan. As an order of this kind is the exception to the rule, the evidence must be such as to justify a rare departure/exceptional order. The evidence must be of “sufficient precision” to enable the court to conclude that the undertaking as to damages offered is inadequate. The court must be able to “rationally” assess the contention that the undertaking as to damages offered will not properly compensate that party. The onus of demonstrating to the court that the undertaking as to damages provided is or would be inadequate in terms of the losses which would be likely to be suffered as a result of the granting of the injunction rests with the party alleging such inadequacy.”

114. It is clear therefore from the above authorities that the party challenging the adequacy of the undertaking must:

(a) provide evidence to the court as to how the moving party’s financial position shows that it will not be a position to honour its undertaking as to damages; and

(b) provide evidence to the court about the losses which it contends it will suffer as a result of the injunction, if granted; Further evidence by the plaintiff and the defendant.

115. Given the submissions of both parties on the cases of Bristol Myers, Cullen v. Dildar, and the judgment of Hardiman J. in Dunne v. Dún Laoghaire Rathdown County Council, I requested both parties to put further evidence before the Court in relation to these matters. I requested the plaintiff to furnish a further affidavit in respect of the financial position of the plaintiff and also in respect of the parent company fortifying the undertaking as to damages. I also requested the defendant to file an affidavit demonstrating evidentially the losses which it contends it will suffer as a result of the proposed injunction for the purpose of demonstrating that the undertaking as to damages offered by the plaintiff was inadequate. These affidavits were furnished to the Court and there was a further hearing on Friday 25th July, 2025.

The plaintiff’s evidence in respect of the undertaking

116. The plaintiff obtained an expert’s report of Mr. Dermot Guthrie, a chartered accountant with Azats Ireland, a firm which provides accounting, tax, audit and advisory services for businesses. In his grounding affidavit he states that he was contacted by the plaintiff for the purposes of carrying out an expert report in relation to the plaintiff’s finances and its capacity, both on its own, and in the alternative, together with its parent company, to stand over an undertaking as to damages which it has given in the proceedings and its capacity to satisfy an award of damages. Mr. Guthrie provided a detailed expert’s report which ran to 23 pages plus exhibits.

117. He stated at page 12 of his report as follows: “I am informed by the company’s legal representatives that any adverse costs order in these proceedings could be in the amount of €1 million together with a claim for damages in the amount of €500,000. I understand that legal costs accountant will be required to estimate the overall costs of the proceedings. However for the purposes of this report I am assuming that any adverse costs order and award for damages would be in the amount of €1.5 million”.

118. I would remark in passing that the only issue about which I am concerned in this application, is the plaintiff’s ability to meet its undertaking as to damages. I am not concerned with its ability to meet an order for costs in the event that it should lose in these proceedings. Such a matter is one which would only be considered by the court in the context of a security for costs application, which is subject to a different line of jurisprudence.

119. It is clear from Mr. Guthrie’s report that the plaintiff instructed him that it was of the view that, if the injunction were granted in respect of the initials “GHR,” and if the plaintiff were unsuccessful at trial, the plaintiff’s estimate of the amount of damages which the defendant would suffer was in the order of €500,000.

120. I am of the view that this is not an unreasonable estimate. It must be remembered that the defendant will continue to compete in the Irish radio market throughout the period between the time of the injunction and the trial of the action. It will therefore be able to obtain revenues which a radio station would earn in the normal way. In the circumstances, the only damages the defendant would suffer between the injunction and the trial of the action would be those additional earnings which it might have made had it been able to use the initials it wanted to use (i.e. “GHR”).

121. Mr. Guthrie in his report set out the company’s financial position based on various metrics. Importantly, he stated at page 20 of the report: “As set out above, the company is clearly balance sheet insolvent taking into account all assets and all liabilities. Crucially however, I have formed the view that the company is solvent on a cashflow basis. The company is on agreed payment terms with its creditors, with the majority of the company’s liabilities not falling due for payment within the forthcoming twelve month period from 31st December, 2023. In addition the company is in a positive working capital position with its current ratio being 1.62:1. I am satisfied that the company meets the requirements of the cashflow test and is therefore solvent on a cashflow basis which is the most important solvency basis.”

122. The cashflow test is, according to Mr. Guthrie, defined as a test which reviews “whether a company can discharge its liabilities as they fall due for payment from current resources”. He stated “in my experience the most important and crucial test for determining whether a company is insolvent is the cashflow test”.

123. In his analysis of the company’s financial results, he stated that the company’s reported profit in its audited accounts for the year ended 31st December, 2023 was €1.4 million but there was an exceptional item for correction of overheads in the sum of €700,000 and therefore the adjusted net profit was €713,000 approximately. He also stated that for the last four financial years, the company had an average net profit in the amount of €463,500 showing that it was performing well and generating “free cashflow” from its operations. He also stated that he did not believe that the company’s negative net asset position recorded on its balance sheet gave a true reflection of the underlying position, especially in relation to the company’s liabilities.

124. In respect of the debt to the Revenue Commissioners, Mr. Guthrie stated that the company had entered into a payment arrangement with the Revenue Commissioners in respect of the debt owed to it for a period of ten years and therefore the taxation liability within the next twelve month period was only one tenth of the total amount (i.e. approximately €100,000 per annum).

125. He concluded that even if the company were operated on a stand-alone basis, outside the current group structure, it was still reasonable to believe that the company would be in a position to meet any adverse costs order together with an order for damages. He said “I have arrived at this conclusion on the basis that the company is debt free, in the traditional sense that it has no bank debt, is generating positive results year on year and is generating free cashflow annually. In this regard the company has a strong repayment capacity. This would enable the company to secure finance to discharge any adverse costs and award for damages”.

126. Mr. Guthrie also made some comments on the financial position of Bay Broadcasting Ltd (“Bay”), the parent company of the plaintiff. He said in his report that he noted that if the Court determined that the plaintiff company did not have sufficient resources to satisfy an adverse costs order, Bay was prepared to offer a fortified undertaking. He said “Bay is the holding company which acts as a majority shareholder in Choice (99% of issued share capital) and Classic (100% of issued share capital) (i.e. Classic Rock Broadcasting Ltd trading as Radio Nova), together with acting as a significant shareholder in Star. The primary assets of Bay are its shareholding in those companies.”

127. He stated that in the year ended 31st December, 2023, Bay and its subsidiaries had:

• A combined turnover in the amount of €9.25 million;

• A combined reported net profit in the amount of €1.92 million;

• A combined EBITDA in the amount of €1.99 million.

128. He said “In this regard I believe Bay and its subsidiaries are a strong financial position, have shown an ability to generate significant revenues and are generating consistent profits and EBITDA. Using an earnings multiple of 6.2, based on transactions in the radio broadcasting sector for the year ended 31st December, 2024, Bay and its subsidiaries have a capital value of circa €14.9 million before adjusting for revaluation of any assets and any adjustments for cash”.

129. He concluded: “I believe Bay is in a strong financial position should it be required to provide a fortified undertaking on behalf of the company.”

130. Counsel for the defendant made a number of submissions in respect of Mr. Guthrie’s report. First, he submitted that Mr. Guthrie was not an independent expert because, as he stated at the outset of his report, he had previously acted as “process advisor” within the meaning of section 558(a) of the Act to various related companies who share a common shareholder with Bay. However, even if this submission is correct – and I do not accept necessarily that it is – the court at this interlocutory stage only requires credible evidence that the plaintiff will be in a position to meet its undertaking as to damages, were it to be called upon. In my view, Mr. Guthrie’s report does provide that credible evidence, irrespective of whether he is regarded as an independent expert or as a company advisor.

131. Secondly, counsel for the defendant submitted that the report of Mr. Guthrie raised as many questions as it answered. In particular he submitted that neither the Court nor the defendant were given any information about the amount of money borrowed by the plaintiff and Bay and Bay’s parent company Star Broadcasting Ltd, trading as Sunshine 106.8 (“Star”). from the lending company, Duke, in the UK. This is true.

132. However, I am of the view that an application for an interlocutory injunction is not a plenary trial on the merits of the case and the courts should be careful not to turn what are meant to be reasonably short hearings for an interlocutory injunction into protracted hearings over many days. The purpose of an interlocutory injunction is often to maintain the status quo until the trial of the action. The Court is in a position to offer a trial date for the plenary proceedings between these parties in January 2026. In the circumstances, arguments about the undertaking as to damages extending over a number of days requiring extra evidence and adjourned hearings, of necessity increase costs to the detriment of all parties without really advancing matters. I do not believe therefore that I should adjourn matters again to seek further evidence on this issue. I have sufficient evidence to decide on the undertaking.

133. The defendant also submitted that it had requested to have sight of various documents which Mr. Guthrie relied on for the preparation of his reports, including the management accounts of the plaintiff. It had written to the plaintiff to obtain these documents and the plaintiff had refused to produce them because I had indicated during the course of oral argument that it would not be appropriate. The defendant submitted that it was unfair that the plaintiff was allowed to rely on an expert’s report without the defendant having sight of underlying documents on which he relied for his report. If this were a plenary trial, then, in my view, the defendant’s submissions would be well founded and I would have considered whether to direct the plaintiff to produce those documents to the defendant. However I reiterate that this is an interlocutory application which has been heard on affidavit evidence alone. I do not believe that any significant unfairness has been caused to the defendant in this matter on this issue.

134. Having considered all the affidavit evidence before the Court and all the submissions of the parties, and, in an attempt to balance the competing interests of the plaintiff and the defendant, I am of the view that even though there is evidence before the Court that the plaintiff is cashflow solvent, there are nevertheless certain frailties in this undertaking. In particular, I am of the view that because the plaintiff is balance sheet insolvent and because the plaintiff has entered into a charge over all of its assets in respect of a UK private equity lending group, that its undertaking should be fortified with an undertaking as to damages to be given by its parent company, Bay Broadcasting Ltd. Mr. Guthrie has stated in his report that, for the year ended 31st December, 2023, Bay and its subsidiaries have a combined reported net profit in the amount of €1.92 million. I am satisfied that a fortified undertaking from Bay will more than meet the requirement for the plaintiff to provide an adequate undertaking as to damages before the Court. In the circumstances I will direct that Bay furnish a fortified undertaking as to damages.

135. The defendant also submitted that Mr. Guthrie has not even produced the audited accounts of Bay for the last year. Again that may be so but I am satisfied based on Mr. Guthrie’s evidence that Bay is in a strong enough position to meet the plaintiff’s undertaking as to damages.

The evidence put before the Court by the defendant

136. Ms. Collette Brady, a solicitor with William Fry, solicitors for the defendant, prepared an affidavit in which she put forward an estimate of the likely costs the defendant could incur in these proceedings. She stated that in her view the legal costs bill for the defendant could be in the range of €900,000 to €1.5 million. However I have not placed any reliance upon this for the purposes of this application. As I stated above, the issue before this Court is whether the plaintiff is in a position to meet its undertaking as to damages not whether it is in a position to meet any costs award which might be awarded against it if it were unsuccessful in the proceedings.

137. Mr. Joe Dempsey, the chief financial officer of the defendant, also swore an affidavit in these proceedings for the purpose of setting out the likely damages which the defendant might suffer in the event that the undertaking was granted and the plaintiff was unsuccessful at the trial of the action. However – unusually – this detailed assessment of the defendant’s estimated damages was set out in a document entitled “Confidential Exhibit”. He states “As the subject matter of this exhibit is highly confidential and contains commercially sensitive information, the defendant proposes not to file this exhibit and not to deliver a copy of this exhibit to the plaintiff. The defendant has however instructed solicitors to provide a copy of confidential exhibit JD2 to this Honourable Court in a sealed envelope for the attention of the Court alone and likewise to provide a copy to the plaintiff’s legal team (provided that they confirm in writing in advance that they will maintain the confidentiality of confidential exhibit JD2 and in particular will not share it with the plaintiff”.

138. In a letter of 24th July, 2025, the defendant’s solicitors wrote to the plaintiff’s solicitors in respect of this confidential exhibit. It stated as follows: “Please provide an undertaking in writing by return, from your firm and your counsel confirming in the following terms that ‘you unequivocally and unconditionally will maintain the confidentiality of confidential exhibit JD2 and that you will not under any circumstances disclose confidential exhibit JD2 to your client or any other person and that you will take all steps necessary to preserve the confidentiality of confidential exhibit JD2 and its contents.” It also stated: “On receipt of this undertaking we will send you confidentiality exhibit JD2 and accordingly we will be grateful if you revert as soon as possible”.

139. On the next day, 25th July, 2025, the plaintiff’s solicitor responded – not surprisingly

– to say that they would not be providing the undertaking requested and that they did not wish to receive a copy of the confidential exhibit.

140. The defendant nevertheless filed the second affidavit of Joe Dempsey on 24th July, 2025. A copy of this affidavit with its confidential exhibit in a separate envelope was furnished in advance of the hearing to the Court. However I did not read it. Having read the affidavit and the correspondence, it was clear to me that the defendant was trying to provide a document to the Court which it did not intend to furnish to the plaintiff, (unless the plaintiff and its lawyers agreed that the document would only be viewed by the plaintiff’s lawyers and would not be shared with the plaintiff). The plaintiff, quite understandably, refused to accept this condition. In those circumstances, this would have meant that there would have been a document of which the defendant was aware and of which the Court would be aware (if I had read it), and of which the plaintiff would be completely unaware. This is manifestly a breach of the constitutional requirement that “Justice be administered in public” and also manifestly a breach of fair procedures. In the circumstances I indicated to all parties in court that I had not read the document and that I would not receive the document in evidence. It therefore has not formed any part of the evidence which I have considered in this matter.

141. Mr. Dempsey in his affidavit – which was before the Court and which was seen by the plaintiff - stated at paragraph 11 “Having conducted the above assessment, it is believed that the value to the defendant of the use of the Bauer marks on the Irish market would be €7.7 million (at a minimum bearing in mind the guarded and conservative nature of the analysis)”.

142. Thus, the defendant’s estimate of its possible damages as a result of an injunction was €7.7 million. Having not seen or reviewed the confidential exhibit upon which this figure is purportedly based, I am not in a position to say with any confidence whether this figure is accurate or inflated. I would say however that in circumstances where the plaintiff’s profit in the Irish market in its audited accounts for the last financial year was €1.4 million, I find it hard to believe that the defendant’s losses for a period approximately six months (i.e. the time between this interlocutory injunction application and the trial of the action), in circumstances where the defendant is trading with its radio station (albeit under a different brand), would amount to €7.7 million. In the circumstances, I have concluded that there is no credible evidence before the Court as to what are the defendant’s putative damages in order to assess the plaintiff’s undertaking as to damages.

143. In such a case, the court, doing the best it can, must arrive at a sensible solution about what the undertaking as to damages should be. As Barniville J. (as he then was) stated in the Nolan case, an undertaking as to damages is not a full indemnity. Moreover this is not an exercise in which the court measures damages. It is simply a case at the interlocutory stage where the court must assess whether the plaintiff’s undertaking as to damages has substance. Taking into account all of these uncertainties and the unsatisfactory state of the evidence before the Court on this issue, I am of the view that the plaintiff’s estimate of possible damages to the defendant of €500,000 is closer to the mark. I say this because (i) the plaintiff who has been in this market for many years, made a profit of €1.4 million in its last financial year ending December 2023; (ii) because the defendant will be in a position to carry on business as a radio station from the time of the interim injunction until the trial of the action and therefore will be in a position to earn revenues and profits and (iii) because the only damage which the defendant might suffer is its inability to use the initials “GHR” were the injunction granted.

144. I have set out my views on this issue of the undertaking as to damages in some detail in this judgment, even though I have refused the plaintiff’s application to extend the injunction to restrain the defendant from using its initials “GHR”. However I am mindful of the fact that the plaintiff obtained an interim injunction and the defendant has at all times since then contested the plaintiff’s ability to furnish a meaningful undertaking as to damages. The analysis I carried out above is only in relation to the plaintiff’s application for an extension of the injunction to cover the initials “GHR”. It is however, clearly also of relevance to the plaintiff’s undertaking as to damages in the interim injunction. Therefore, if the defendant wishes to contest the plaintiff’s undertaking as to damages in relation to the interim injunction in the light of all the evidence which has come to light since the interim injunction was granted, I will hear further submissions from both parties on that issue if necessary.

The issue about Rewind Radio

145. Mr. Joe Dempsey, chief financial officer of the defendant, also swore an affidavit on 22nd July, 2025 to address what he stated was a matter of serious concern which came to the attention of the defendant on Wednesday 16th July, 2025 and which it said was of relevance to these proceedings. He stated that there was a new DAB+ station owned by Christmas Radio Ltd which was operating under the brand name “Rewind Greatest Hits”. The defendant stated that Christmas Radio Ltd was using the phrase “Greatest Hits” in its on-air jingles as a brand and not just in a descriptive sense. The defendant also stated that there was a close relationship between Mr. Brannigan (the CEO of the plaintiff) and Mr. Garvan Rigby who was a director of Christmas Radio Ltd. The defendant stated that the connection between Mr. Brannigan and Mr. Rigby extended beyond friendship into a commercial relationship and that over their careers both had been involved as co-directors of three separate companies all of which were now dissolved. The defendant stated that it struck the defendant “as odd that Mr. Brannigan, the deponent of the affidavit grounding the plaintiff’s application for ex parte relief, would have had no knowledge of, and indeed made no reference to,” Christmas Radio Ltd’s use of the Greatest Hit brands at the time the plaintiff made its ex parte application – “especially so in circumstances where as averred above, Christmas Radio Ltd was using the Greatest Hits brand well prior to the commencement of these proceedings by the plaintiff”. The defendant stated that these were material facts relevant to the grant of the injunction and that the plaintiff could not simultaneously seek to enjoin the defendant and not seek to take steps to enjoin Christmas Radio Ltd. As this was a new issue which had arisen, I directed that Mr. Brannigan file a replying affidavit on this matter as I was concerned that there might have been a lack of candour on the part of the plaintiff on this issue.

146. However Mr. Brannigan swore a replying affidavit on 25th July, 2025 and at paragraph 6 he stated as follows: “Firstly, I say categorically that I was not aware of Rewind Radio’s use of the words ‘Greatest Hits’ at the time the ex parte application for injunctive relief was made”.

147. He also stated at paragraph 7: “I also say categorically that I was not aware of Rewind Radio’s use of the words ‘Greatest Hits’ until I received the letter from the defendant’s solicitors on 18th July, 2025”.

148. Mr. Brannigan also set out details of his friendship with Mr. Garvan Rigby. He said that “on the occasions that I did meet with Mr. Rigby socially, we did not discuss either my business activities or his business activities and he did not inform me of the fact that Rewind Radio was using the words ‘Greatest Hits’”

149. Mr. Brannigan stated that he “was aware of the existence of Rewind on DAB Plus since April 2025” and that he “landed on the station perhaps three or four times while listening to it in my car. I did not stay listening long enough to notice any jingles and the display on my car only showed the words “Rewind”.

150. I am satisfied, based on this evidence of Mr. Brannigan, that there was no lack of candour on his part, or on the part of the plaintiff, in making the plaintiff’s application for an ex parte injunction.

151. Mr. Brannigan also differentiated the position of Rewind Radio from the position of the defendant. He stated that Rewind Radio appeared to be using the phrase “Greatest Hits”

in their slogan but not as their station name or as their brand, unlike the position of the defendant which was using the words “Greatest Hits Radio” as its brand.

152. I am satisfied that the issues which the defendant has sought to raise on this matter are not relevant to any of the issues which I have to decide in this injunction.

Conclusion

153. I would therefore conclude as follows:

(i) The terms of the interim injunction granted on 20 June, 2025 do not include the initials “GHR”;

(ii) The plaintiff has not made out a fair issue to be tried that the defendant’s initials “GHR” amount to passing off its brand as that of the plaintiff;

(iii) The plaintiff has not made out a fair issue to be tried that the defendant’s initials “GHR” amount to an infringement of the plaintiff’s trademark “Classic Hits”;

(iv) Even if it had, the balance of justice would have been in favour of refusing the application to extend the injunction to “GHR”;

(v) Even if the plaintiff had made out a fair issue to be tried and that the balance of convenience was in favour of granting the injunction, I would have considered that the plaintiff’s undertaking as to damages is not sufficient on its own, given that the plaintiff’s balance sheet shows it is balance sheet insolvent; and that the plaintiff has created a charge over all of its assets;

(vi) In such a case, I would have concluded that a fortified undertaking as to damages from the plaintiff’s parent company is required.

154. I have set out my views on the undertaking as to damages at some length because it clearly has an effect on the undertaking given in relation to the interim injunction and I will hear the parties further on this issue.

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