It appears from the files that this is a long running story, beginning in 1991, when Mr Wales agreed to pilot a car that Nelson Kruschandl had designed, which incorporated his patent refueling technology. This was Kruschandl's first electric car and it was called "Bluebird-9-Electric," or BE1. The letter below dated 21-11-91 confirms acceptance of that proposed by Mr Kruschandl by the recipient Mr Wales. At this stage Kruschandl was funding the project entirely from his own pocket in catapult fashion.
The stunning designs of the Inventor soon captured the imagination of the media, taking Wales as an unknown in Land Speed Record terms and placing him behind the wheel of the proposed BE1, a four wheel drive 200mph machine. Press coverage was secured in several national newspapers as the result of PR on the part of Kruschandl and Nicholls PR, who was at the time representing Kruschandl. Well placed photographs of Kruschandl's BE1 car in the motoring press and the Telegraph newspaper, soon attracted sponsors, later boosted on the basis of a faster 300mph design called the BE2.
Kruschandl was already out of pocket substantially in building the BE1, all riding on sponsorship being obtained. On the promise of repayment at an agreed rate of remuneration, not unlike the arrangement between Ken Norris and Donald Campbell in the 1960s, Kruschandl shelved the BE1 and built a full-size wooden buck and made a mould, which was painted to represent the finished BE2 car. The BE2 soon attracted additional sponsors, but it is alleged that Wales refused to settle agreed sums of remuneration, or any part thereof.
It is alleged that Wales took the money raised on the original BE1 and BE2 designs of Kruschandl and used that money to build a third design, a converted Formula Ford, which was incapable of taking the World record that the team had contracted with sponsors to attempt. Kruschandl, alleges that that the actions of Wales was putting him in a position of Breach of Contract with sponsors and undermining his intellectual property.
Kruschandl says that he was forced to obtain an Injunction in the London Patent Court, where the Formula Ford conversion did not have his refueling system, but was being advertised in such manner as to cause confusion in the minds of the public. Such confusion is called 'passing-off'.
A Consent Order is an Order where both sides agree issues. It is therefore more binding than any other kind of Order. An Order by Consent is not like an ordinary Order, in that it may not be challenged. You can see from the wording of the Order above that passing-off was the issue at hand, as in Wales agreeing not to " (b) represent any vehicle as based or modelled on the design the subject of the said registration."
The Registered Design referred to is that of the original BE2. An electrically propelled car painted blue and known as the Bluebird Electric 2. Kruschandl alleges that this Injunction would have prevented Wales (1st Defendant) or the company Bluebird Electric Limited (2nd Defendant), from applying for a trademark in person.
Another car based on the BE1 (hence BE2) design is the Tomcat DC50 seen below, also a Registered Design item from 1997. This is a performance sports car featuring the instant refueling system by cartridges, which refueling system is known by the trade name 'Bluebird' and a blue colored bird in flight logo. We think you may agree that this electric sports car came before any sports car from Mr Wales and that it was the original concept of the Design Registrant - otherwise registration could not have been accepted as original. The Tomcat DC50 (direct current) is not that dissimilar to another sports car announced in 2013, which it appears is to carry the Bluebird name.
Let us hope that the new Bluebird sports car does not have EV instant refuelling, or that may trigger yet more trade mark, or possibly passing-off / breach of injunction litigation.
Returning to the Land Speed Record matter, it is alleged that Wales denied that cars subsequent to 1998, that he was racing, called 'Bluebird Electric' were anything to do with him, but rather another company and he had just been invited to drive. As a director of Bluebird Electric Limited, Wales' fiduciary duty as a driver was to Bluebird Electric Limited. Kruschandl alleges that there should have been a service contract to this effect. The letter below from Companies House dated 4-12-2002, advises that Companies House had requested that Bluebird Electric Limited remedy that situation urgently. The car that Wales denied having any hand in producing was raced not only by himself, but also by his son Joe Wales in 2011. This is a matter of fact as may be seen in many newspaper articles in 2011.
MALCOLM CAMPBELL HERITAGE TRUST APPLICATION 6 NOVEMBER 2002 No: 2315925
The Malcolm Campbell Heritage Trust applied for the mark 'Bluebird' for high speed racing vehicles on 6-11-2002. This application could not proceed due to an Appeal against a decision in Opposition proceedings No: 50452 (App. 2145888). The earlier Application on the part of the Opponent taking precedence. At this stage the existence of the Injunction shown above from December 1998, was not an issue, because Application 2315925 had not been filed in the name of Don Wales.
It appears from the above that Don Wales, acting for The Malcolm Campbell Heritage Trust, Undertook to provide a Licence to Nelson Kruschandl, on terms previously agreed. It is alleged that there were no terms agreed previously, save that Kruschandl should withdraw his Appeal in opposition number 50452, which he did, meaning that the Licence terms were unconditional from the point of Kruschandl withdrawing his Appeal. It is alleged that there followed a series of communications where Marks & Clerk sought to negotiate additional terms for The Malcolm Campbell Heritage Trust (MCHT). Why we ask, if terms had been agreed and the Appeal withdrawn?
Unfortunately, some two years later there was no sign of the promised Licence from the MCHT and time was running out. This is a tactic used by many IP firms. They seek to run you out of time for lodging either appeal or opposition, knowing that your state granted right to Opposition is then gone.
LODGE OF FRESH OPPOSITION
A fresh Opposition was duly lodged, on the basis of a letter confirming withdrawal once a Licence was forthcoming from the MCHT. The Opposition was to preserve the status quo in the event that the MCHT failed to perform - as was the case at the time.
The cooling off period was used to continue negotiations which finally led to an Agreement between parties to provide Kruschandl a Trademark Licence and extend the cover of the original application, to include goods that Kruschandl wished additional cover for as to the manufacture of electric cars, presumably for use with his Tomcat DC50. The letter below dated 21-6-2004 form Marks & Cleark appears to confirm that additional goods were added at Kruschandl's request, and the letter dated 30-6-2005 from the Patent Office confirms when Form TM7 was lodged. It is noted that these letters were not available to Kruschandl while a prisoner, because firstly he was denied access to a Justice Laptop, and secondly the Prison Service lost his evidence disc on transferring him from Lewes to Maidstone. This the Prison Service denied despite proof of receipt of an evidence CD by them. Using the internal complaint system had little effect, save only for Ombudsman findings of maladministration in other cases, but no real satisfaction or compensation.
It is alleged by Kruschandl that The MCHT not only failed to perform, but put themselves in a position where they could no longer perform, in that the MCHT transferred ownership of Trust property to one Trustee for is personal use. That Trustee was Don Wales.
The validity of that transfer from the MCHT to Mr Wales is the subject of an Application to the European Court of Human Rights under reference number 28536/09 and fresh application in 2013, where, the United Kingdom TM Registry refused to grant the Opponent in the proceedings a hearing at all, without security for costs being lodged amounting to some £2,000 - but where the Opponent was trapped in the judicial system as a prisoner, and as such (the British prison system is not compliant with the European Prison Rules as to earnings)* Mr Kruschandl was not in a position by virtue of UK prison rules, to earn sufficient money to provide said security. We have a copy of the full grounds as lodged with the ECHR if anyone is interested.
The applicable prison rules are reproduced below and the relevant sections that say work shall be assured and that equitable remuneration for that assured work shall be provided. Equitable of course means in line with that normally associated with work. But at HMP Maidstone, event the highest paid kitchen workers received just £10 a week or thereabouts. Can you imagine a cook working for £10 a week. Is that equitable? Prisoners are supposed to be able to save and send money home to their families.
Scan of prisoner WF8716 earnings sheets between March 2009 and January 2010 - Note: Standard Band and No Savings
Standard regime netted WF8716 between £4 and £6 a week to live on. And don't forget that they deduct £1 for your TV.
This particular Trade Mark rule would mean that any prisoner in the United Kingdom who applied for a trademark before he became a prisoner, would be unable to receive a hearing in opposition proceedings, a clear discrimination on the grounds of financial status. In other words, only those with means might achieve a trademark. However, prisoners are encouraged to prepare themselves for release back into society and society is supposed to help reintegration, such as working - or in this case trading on return to society. Clearly, the UK TM rules as they stand do not stack up against other courts, where prisoners (or anyone financially disadvantaged) receive assistance when it comes to fees. Such financial relief is held to be in compliance with Article 6: the right to a fair hearing.
In this case the Trade Marks Registry ruled that if £2,000 was not lodged with them, they would deem the Opposition abandoned. In which case Mr Wales would end up with his trademark by default - without the grounds of the Opposition being heard - and that is precisely what happened.
The Opponent in this case wrote to the TM Registrar asking that the case might be put in abeyance until his release - which request the Trade Mark Registrar refused.
We understand that further information is due to be sent to the ECHR, to include a copy of the transcript below and the details of prisoners earnings. Prisoners earnings in HMP Maidstone were at the time running between £5 and £10 a week, from which the prisoner had to pay for phone calls (at roughly six times the ordinary cost of phone calls) postages, sugar, coffee and decent toothpaste. The situation was so bad, that more than 50 prisoners signed a petition calling for change.
In European prisons, wages are close to that which one might earn as a civilian. I.e. a normal wage. If a normal wage was usual in UK prisons, the Trade Marks Registry could not have ruled that the Opponent in this case was unable to earn a living. In other words, the Trade Marks Registry was admitting on behalf of the UK that British prisons do not comply with the European Prison Rules 1987 (as amended). But in any event, where other UK Courts grant fee exemptions, then by analogy, was it not unreasonable of the Trade Marks Registry to seek to impose conditions that they knew the Opponent could not meet. Was that decision compliant with Article 6?
The Opponent alleges that the transfer from the MCHT to Don Wales in person was in breach of their special duty as Trustees to the Opponent. He cites the Trustee Acts and Limitations Act. The Opponent alleges as trustees of trade mark application number 2315925 that the MCHT were under a special duty to keep him informed as to potential transfers, but that the transfer to Mr Wales was effected without the MCHT notifying him beforehand, where he (the Opponent) is/was a beneficiary of Trust property. We have a full copy of the grounds lodged in the UK Trade Mark court is anyone is interested.
The Opponent in the trademark proceedings is also an Appellant duly lodged with the ECHR in relation to his criminal conviction, since May of 2009 and May of 2012 previously under Application number: 28536/09, (now a fresh application). The ECHR lump cases together for administrative reasons apparently as you can see from the letter below.
It is the custom of the UK Trade Mark Registry to publish cases, but not publish any underlying issues that challenge procedural irregularities, such as their ruling on costs. It appears to us that in this case the IPO may have been biased as to prisoners rights - despite several rulings on the subject.
Scan of a typical ECHR receipt and accompanying envelope
* European Prison Rules 1987 (extract)
1. Prison work should be seen as a positive element in treatment, training and institutional management.
1. The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of
normal occupational life. It should thus be relevant contemporary working standards and techniques and organised to function within modern management systems and production processes.
Work for prisoners shall be assured by the prison
1. Safety and health precautions for prisoners shall be similar to those that apply to workers outside.
1. The maximum daily and weekly working hours of the prisoners shall be fixed in conformity with local rules or custom in regard to the employment of free workmen.
1. There shall be a system of equitable remuneration of the work of prisoners.
2. Under the system prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and
to allocate a part of their earnings to their family or for other approved
[The reader might also like to know that prisoners in the UK are not allowed access to the internet and various means are used to deny them computer access for the preparation of complex cases. The Opponent in this case applied for what is termed a Justice Laptop, which is allowed in cell, but having obtained one, he was then shipped to another prison. The reason for shipping litigants about is so that they can remove any justice facilities during transit, and make prisoners re-apply at any new prison. The new prison then denies justice facilities. On the second occasion this prisoner applied for justice facilities, this time while in Maidstone Prison, the governors refused permission. That led to an application for a Judicial Review that took roughly 12 months to get to the High Court in the Strand, shortly before which HMP Maidstone said they'd provide a Justice Laptop (JL). Not long after receiving his JL the prisoner was once again moved to another prison. The whole process is designed by the Ministry of Justice to deny justice facilities to prisoners. In addition, prisoner are not informed of their rights. Certain PSOs (Prison Service Orders) and PSIs (Prison Service Instructions) are not freely available - once again, specifically to thwart any prisoner who is a litigant in person.
Although the UK is a Signatory to the European Convention, Articles 1 and 13 have been omitted from the domestic Human Rights Act 1998. Article 13 is a persons right to an effective remedy.]
Below is a verbatim transcript of the proceedings that took place after the Opponent had been denied a hearing as to the Opposition lodged before he was a prisoner. These proceedings are to do with costs for a hearing that never took place. In other words, having denied the prisoner a hearing because UK prisons don't provide equitable remuneration, they then wanted to award costs to the other side by default. So, putting a prisoner at risk as to bankruptcy on his release, should an unscrupulous applicant wish to further disadvantage their opponent. It is alleged that the UK administration still have parts of their justice system incompatible with Article 6. If that turns out to be the case, then Kruschandl will be entitled to what is known as a Declaration of Incompatibility. When such a declaration is made, the UK is then obliged to look at the Declaration. The UK can then decide to amend stature, or pay a fine. For example: razor wire has been held to be incompatible with the Convention of Human Rights, but instead of removing the razor wire, the UK elect to pay a fine of around £20,000 per prison per year to the European Union.
Video Conference Room,
In the Matter of the Trade Marks Act 1994
In the Matter of Trade Mark Application No: 2315925
in the name of
MR. DONALD WALES
In the Matter of an Appeal to the Appointed Person
from the decision of Ms. Judi Pike, acting on behalf of the Registrar, the Comptroller-General dated 15th November 2010.
lst Floor, Quality House, 6-9 Quality Court,
MR. NELSON KRUSCHANDL, the Appellant/Opponent, appeared in person.
R U L I N G
1 THE APPOINTED PERSON: In an official letter dated 22nd September
18th September 2011 for which a hearing, with an estimated
ECHR - YOUTUBE
During 2011 Kruschandl had been attending education regularly (which is classed as work under prison rules) but they without warning removed him from education and tried to firstly force him into the kitchens, then to mop the floors. This became a matter of principle, where Kruschandl is a design engineer and where the prison wished to flex their muscles and force a bona fide appellant to work - to make an example of him, and the appellant knew they were breaching not only prison rules, but also his human rights [in taking away what little justice facilities he had].
Eventually Kruschandl ended up in segregation (the block) but still refused to do work that could not benefit him because as you can see from the rules he was entitled to choose his work. See the extract from the European Prison Rules marked in green above - and you will see that Mr Kruschandl had a point. Kruschandl never made it back to normal population. They kept him locked in his cell except for meals and exercise for many months - until he was finally released. If he had been a prisoner of war, we believe from reading his diaries, that he is the kind of man who would have led an escape attempt. See Steve McQueen and The Great Escape.
Email from Marks & Clerk to Mr Kruschandl 6 November 2006
Following this email, Don Wales sent the Private 'Deed of Compromise' by special delivery number ZV 4994 2309 6GB to Mr Kruschandl, duly signed. This is the envelope that the document was received in. The handwriting is clearly that of Donald Wales, as anyone who knows his writing will attest to. Kruschandl was not consulted about the transfer and would not have agreed to the transfer of ownership without being notified well in advance and thereafter re-negotiating key issues. He alleges that transferring the ownership from the protection of the Malcolm Campbell Heritage Trust, would be bound to cause him difficulties.
The following are 4 scans of the 4 pages of the document that Mr Wales returned to Mr Kruschandl, and please note the signature of Don Wales affixed at the appropriate places. So too that of Mr Kruschandl at the appropriate place. Kruschandl was unable to provide a copy of the signed document to Mr Hobbs, where Mr Wales had for some reason supplied the Court with an unsigned version of the same document, apparently leaving Mr Hobbs thinking that there was not a completed Deed and that perhaps the Opponent was mistaken about his evidence. Matters such as these are material considerations for any judge when making decisions. Mr Kruschandl had been denied access to a justice laptop while the trade mark hearings were in progress. For that reason Kruschandl could not get to many of the necessary documents for these hearings - and that is apart from the prison removing his files shortly before the hearing transcribed above.
Please note that the document below is headed as a Deed. A Deed is a special kind of Agreement that is more binding than most and need only be signed by one party, with a second party acting as a witness. All of that provided herein is evidence for the European Court in connection with the Opposition hearing that was not allowed. Thus the matter may be considered to be subjudice at the moment of publication, or at any time in the future, should litigation re-awaken. We are simply reporting the facts, not drawing any conclusion. Kruschandl's case is against the State, who he says breached his right to a fair hearing. Should Mr Wales disagree with anything on this page, he is welcome to say his piece and we will publish anything that he wants to add.
It is noted that at least two companies would appear to be supporting Mr Wales in his bid to field a Formula E team. The Bluebird GTL, Formula E car is sign written with the names 'Unipart' and 'Chris Ward.' Our apologies if this is not correct. We would be very much obliged if those companies might confirm the current position.
The Opponent received a letter from the Intellectual Property Office dated the 27th of July 2012, whereby they confirm that the Applicant, Don Wales, has made it known that Costs in this matter were outstanding. See copy of the TM Registry's letter below, form which you will note that it is the practice of the TM Registry to publish details of the award and any comments. We agree that if these matters are to be made public, then both sides of the story should be told. If only one side of the story is told, that would not only be unfair, but also favour one of the opponents in a legal battle, which favoritism is of course blatant discrimination, which is prohibited under the provisions of Article 14, that in respect of Section 6 (HRA 1998), is unlawful in England; being a violation of the Opponent's Convention Right to be treated equally.
The Opponent replied to the Registry in a letter sent by Recorded Delivery dated the 28th of August 2012, copy of which is reproduced below. He pointed out that should they decide to publish anything at all, that they had a duty to publish in an unbiased fashion, or breach Articles 14 and (in respect of litigation to come) Article 6(1), the right to a fair hearing. You would imagine that having been reminded of their obligations under Article 14, that the Registry would either publish nothing, or all of the correspondence between the parties. Even the Press are bound by what is called fair and accurate reporting - which prohibits bias - sometimes known as dissembling. Dissembling is where only part of a story is told, that or those parts favoring one side of an argument.
In view of our invasion of Iraq and other indiscretions across the globe too many to mention, you may not be surprised to learn that the British Government (the TM Registry being an executive agency thereof) did not publish any of the Opponents reasoned arguments. To include claims for breaching use of the words "Bluebird" and "Electric" to describe his projects in 2011, when Mr Wales was bound by the terms of the Above Deed of Compromise dated 27th of May 2007. It is alleged by the Opponent that such breaches of contract (and/or trust) will attract claims of damages significantly more than the Costs Order the subject of these communications.
That being the case, it may be seen by some as being perverse to Order Costs, when such an Order has the potential to prejudice claims against Mr Wales for Breach of Contract, or in the case of the transfer of Trust property; Breach of Trust. The letter reproduced below dated the 17th of September 2012, from the TM Registry's Lynda Stephens, confirms the violation described above, and that the published details will "remain" on their website. We think the saying is Tit for Tat, and would remind the British Government about the Boston Tea Party.
It is only be challenging injustice that injustice may be repealed. Revolution is a means to cleanse a country of ingrained practices that violate the laws of natural justice. Revolution in this case must mean a challenge in the European Court of Human Rights against the perceived and ongoing violations of the Articles cited.
STRATEGIC LAWSUITS - SLAPP WIKIPEDIA
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
Various abusive uses of this law including political libel (criticism of the political actions or views of others) have ceased to exist in most places, but persist in some jurisdictions (notably British Columbia and Ontario) where political views can be held as defamatory. A common feature of SLAPP suits is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the court in which the defendant (or sometimes plaintiffs) live.
The question that arises next from the above Wikipedia article is this: is the use of the [interim] costs awarded by the Appointed Person, a means for the Applicant to bargain with the Opponent as to the License from the Malcolm Campbell Heritage Trust? In this case it appears that the cost of obtaining the costs award is near equal to or exceeds the actual costs award. If that proves to be the case then the efforts by the Applicant to obtain the award may be seen to be strategic - rather than that there was a large legal bill that needed settling and that this was the only way of settling that bill.
Apparently, Mr Wales has written to Mr Kruschandl offering to waive the costs award in return for Mr Kruschandl waiving his right to the License he is owed by the Malcolm Campbell Heritage Trust. Mr Kruschandl says that he cannot do that, for that could lessen his claim in Europe, and that may not have escaped the attention of Marks & Clerk, who advised and handled the transfer from the MCHT to Don Wales in person - despite the existence of two very important Court Undertakings, which in the interests of balanced reporting, we reproduce herein to allow Mr Wales and/or Marks & Clerk the opportunity to comment if he/they so choose.
As to the cost of obtaining a costs award, it is necessary to look not only at the cost of obtaining a costs award, but also the cost of recovering the costs of a costs award, especially if the purpose of obtaining the costs award is not to recover costs, but to cause other harm to the opponent.
If it is demonstrated that the cost of obtain an award for a relatively minor sum exceeded the cost of the award, the, or any court must then take into consideration the costs of recovery, which when stacked with the cost of the award is cumulative, in the context of motive for pursuing an award in such manner.
Should it transpire that the cost of recovery is also a significant factor, then following through with recovery proceedings simply for the sake of harassing the subject, may be viewed by a court as malicious, or with malicious intent. Such costs may include the costs of those instructed to pursue the costs, such as a series of collection agents or bailiffs.
The trouble with fighting dirty is that airing ones grimy laundry in public does no side any favours in the long run. We have now obtained copy of a transcript of an audio recording of the annual general meeting of Bluebird Electric Limited held in Chichester on the 28th of July 2000. It is alleged by Mr Kruschandl, that the first thing Mr Wales did when confronted with this transcript, was to threaten him should he publish it. The question is why would anyone threaten another person for simply revealing a verbatim copy of a conversation between two shareholders of a company at an AGM, unless there was something in that conversation that was a revelation in one measure or another.
Blue is a very popular color for cars at the moment as you may agree from this small sample of the market. These are some nicely finished cars, all of which are production models (or limited production designs), save for the MCV6 electric concept car (2nd row). It is a little known fact that certain shades of blue attract common English flies. Why that might be is unknown. It could be paint formulation, or it could be something to do with the light spectrum. If you have any scientific evidence in support of any theory, we'd appreciate a heads up. Take care then when deciding to paint a car blue, that you use a pantone that is more an insect repellent. Modern production cars use metallic, chrome effect and pearlescent paints that do not appear to suffer the dilemma.
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