Judge accused of branding chicken shop customers ‘intoxicated morons in a hurry’ in 15-year legal battle between warring chains

A judge has been accused of calling the average fried chicken shop customers ‘intoxicated morons in a hurry’ during a 15-year legal battle between two competing chains.

The legal row centres around trademark infringement claims by bosses of the popular south London fried chicken chain Morley’s against their ‘copycat’ competitor Metro’s.

Morley’s claimed the boss of Metro’s, Kunalingham Kunatheeswaran, had used signage which was too similar to Morley’s distinctive red and white, ‘MMM… it tastes better’, trade mark.

In June last year, Judge Melissa Clarke ruled in favour of Morley’s, holding that Metro’s ‘…It’s the real taste’ sign infringed Morley’s mark.

The judge ruled in favour of Morley’s after finding there was a high risk that hungry, tired or tipsy late-night diners could get confused between the competing signage when negotiating the streets of London after midnight.

However, lawyers for Mr Kunatheeswaran – and other Metro’s franchisees affected by the case – are now appealing Judge Clarke’s ruling, claiming her approach to the issue of what type of customer frequented the rival chains was fundamentally flawed.

Judge Clarke found that some of the ‘average consumers’ visiting the chains would be ‘late-night and early morning revellers who are likely tired, hungry and a significant subset of which will be intoxicated’.

Morley’s claimed the boss of Metro’s, Kunalingham Kunatheeswaran, had used signage which was too similar to Morley’s distinctive red and white, ‘MMM… it tastes better’, trade mark

‘They will choose by convenience of location, shopfront and what is open late, and in my judgment will pay a low degree of attention,’ she said, holding that this could create confusion about signage and restaurant identity.

But Metro’s barrister, Simon Malynicz KC, told the Appeal Court the judge had wrongly focused on this ‘intoxicated’ class of customer, which she based on evidence from Morley’s manager about the habits of late-night customers.

He said: ‘The judge thus essentially assimilated the average consumer in trade marks law – a notional figure who is deemed to be reasonably careful and circumspect – with a figure eschewed even by the law of passing off – the so called ‘moron in a hurry’.

‘Indeed it might be suggested that the judge’s approach was even more extreme – the class of consumers here was in effect a small number of drunk, tired and hungry morons in a hurry.

‘Whilst it is legitimate to identify different groups of average consumers, such groups must be reasonably broad to match the scope of the registered trademark and not confined to those whom the trademark owner happens to deal with.’

The ‘moron in a hurry’ is an archetypal hypothetical person used as an example in some legal cases, especially involving trademark infringement and passing off.

Where one party alleges another has infringed their intellectual property rights by offering a product similar to their own, the court has to decide if a reasonable person would be misled by the defendant’s trademark.

It is said that ‘if only a moron in a hurry would be misled,’ the case is not made out.

In June last year, Judge Melissa Clarke ruled in favour of Morley’s, holding that Metro’s ‘…It’s the real taste’ sign infringed Morley’s mark

The judge ruled in favour of Morley’s after finding there was a high risk that hungry, tired or tipsy late-night diners could get confused between the competing signage when negotiating the streets of London after midnight

Arguing this was essentially the basis on which Judge Clarke ruled in favour of Morley’s, and that she was wrong to do so, Mr Malynicz added: ‘The judge’s starting point was to consider the population of Morley’s customers as analysed in Morley’s evidence… That was in error.’

In his evidence to the High Court, Morley’s boss Shan Selvendran – son of founder Kannalingham Selvendran – explained that the ‘iconic’ chain was founded in 1985 and ‘inspired by KFC’.

It began in the heart of south London’s Sri Lankan community with a vision that its food should be ‘for everyone and accessible to all’, using the distinctive red and white trademark and ‘Triple M’ brand from day one.

By the time of his father’s death, Shan Selvendran had built up around 40 Morley’s shops, the court heard, with his mum at one point temporarily stepping in to take over the business until Mr Selvendran graduated and became chief executive in 2009.

The Morley’s brand was now ‘synonymous with fried chicken for everyone in south London’, said Mr Selvendran, adding: ‘everyone recognised the name of the famous Morley’s burger and it was iconic’.

The chain currently has around 100 outlets and became an established part of the hip urban landscape when cutting edge musicians increasingly referenced the food shops in their works.

Judge Clarke also noted: ‘In relation to music, he points to the British rap artist Stormzy, who referred to Morley’s in the track ‘Wicked Skengman Part 4’ of May 2015, and his music video for ‘Big for your Boots’ which was filmed inside a Morley’s in about February 2017.

‘Another artist, Krept, wrote a song called ‘Morley’s Freestyle’ in around 2019, shot the music video for the track outside a Morley’s store, and used a full-sized prop of the Morley’s store frontage on stage during his concert at the O2 Arena in 2019.

In his evidence to the High Court, Morley’s boss Shan Selvendran – son of founder Kannalingham Selvendran – explained that the ‘iconic’ chain was founded in 1985 and ‘inspired by KFC’

‘His evidence is that he spoke to Stormzy in November 2023, who spoke about his childhood memories of Morley’s for over an hour, growing up during the 2000s.’

Giving evidence, Mr Selvendran told the court: ‘He used the word ‘heritage’ and I always hear that word from people when talking about Morley’s.

‘Although I didn’t appreciate it when I was younger, I now realised how important Morley’s is (and was) to a huge number of people…people feel a connection with Morley’s and view the brand as part of their life and heritage..’

He said Morley’s had faced a ‘constant battle with imitators’, first locking horns with the boss of franchise Metro’s, Kunalingham Kunatheeswaran, 14 years ago, when he learned that the latter had planned to use the name ‘Mowley’s’ for the launch of a new food outlet.

Confusion between the Metro’s and Morley’s sign was a constant source of concern, said Mr Selvendran, highlighting an incident in which a barista at a café opposite a Metro’s store asked him what he did for a living.

‘When he said he worked at Morley’s, the barista pointed to the Metro’s sign and said: ‘Oh that one there?” – forcing him to explain the difference between the two chains.

Sketching out Morley’s case, Judge Clarke explained: ‘The (company) says that this is the latest episode in persistent copycat behaviour by Mr Kunatheeswaran since around 2010, during which time he has imitated and sought to ride on the coat-tails of the claimant’s branding, in various shifting forms.’

Morley’s management had mapped the location of Morley’s and Metro’s stores and claimed that their rivals were ‘all located within 400 metres to 1.2 kilometres of an existing Morley’s store’ – with the pattern even allegedly continuing after it opened its first Birmingham outlet.

But in his evidence, Mr Kunatheeswaran insisted that he never paid any attention to where Morley’s stores were located when making a decision about where to grant franchises’.

Ruling against Mr Kunatheeswaran in the High Court, Judge Clarke said his chain strayed beyond the terms of a previous 2018 settlement deal restricting their signage to a blue bordered red banner rather than Morley’s distinctive crimson red banner.

‘Mr Kunatheeswaran and one of his franchisees also breached Morley’s trademark by using the company’s distinctive ‘Triple M’ slogan ‘MMM’ on shop windows and notice boards.

‘The franchise defendants and Mr Kunatheeswaran have infringed the Morley’s red and white mark,’ she said.

‘(He) is jointly and severally liable with the franchise defendants for their infringement of the Morley’s red and white mark.

‘The claimant is entitled to injunctive relief against those defendants who are still using the signs.’

Mr Kunatheeswaran and his franchisees are now challenging that injunction ruling in the Appeal Court, with a final decision now on hold from Lord Justice Newey Lord Justice Arnold and Lady Justice Falk, to be delivered at a later date.