Sky v SkyKick: Court of Appeal says no, not yet, to an early appeal

What happened

Sky sued SkyKick for trademark infringement and passing off over the SKYKICK name. SkyKick fought back, arguing Sky's trademarks were invalid because their specifications (the lists of goods and services they covered) were unclear, and because Sky had registered for goods and services it never intended to use, which SkyKick said amounted to bad faith. The trial judge didn't decide those validity questions directly. Instead, the judge sent five questions to the Court of Justice of the EU (CJEU) for a preliminary ruling, without making a final decision on infringement or passing off. Sky asked the Court of Appeal for permission to appeal that decision, hoping the Court of Appeal could resolve the issues itself and avoid the CJEU reference altogether.

What did the court decide in Sky v Skykick, UK?

The Court of Appeal held that it did have the power to hear an appeal and, in principle, could have resolved the whole dispute itself using its general appellate powers. The court distinguished an earlier case called Cartesio, because here the proceedings had not simply been sent back to the trial judge. Even so, the court declined to use that power at this stage. Stepping in mid-litigation risked creating more procedural complexity, such as the need for further fact finding or a second appeal later on. It was better, the court decided, to let the CJEU reference proceed and deal with any appeal once the full picture, including the CJEU's answers, was known.

What we learned from this

• What I'd take from this is that trying to shortcut a referral to a higher court by appealing early doesn't usually work, even when a business thinks the issues are clear cut and wants a faster answer.
• If a case has been referred to the CJEU or another higher court for a ruling on a specific question, expect the wider litigation to pause until that answer comes back.
• Trademark validity disputes over unclear specifications or bad faith registration can take years to resolve fully, so budget for a long process rather than a quick result.

Things to be aware of

The businesses involved

What happened next

• The CJEU went on to give its preliminary ruling on the questions referred in the Sky v SkyKick case, addressing trademark clarity and bad faith.Source: Eur Lex
• The litigation continued in the High Court, which in 2020 limited the specifications of Sky's trademarks and ruled further on infringement.Source: Practical Law (Thomson Reuters), April 2020
• The dispute ultimately reached the UK Supreme Court, which in November 2024 ruled that overly broad trademark specifications can be invalid for bad faith.Source: IPKat, November 2024
• The UK Intellectual Property Office later issued guidance for trademark applicants following the Supreme Court's judgment in the case.Source: Gov, June 2025