Reasonably Arguable Case and No‑Fault Termination in Trade Mark Licensing: Commentary on Somnus GMC Waterford Ltd & Somnus GMC Carlow Ltd v Flynn & Mattress Mick Ltd [2025] IEHC 676

1. Introduction

This High Court decision of Bolger J, delivered on 28 November 2025, sits at the intersection of three important areas of Irish law:

the modern test for interlocutory injunctions and the “serious issue to be tried” threshold;
the enforcement of clear, written termination clauses in commercial trade mark licence agreements; and
the standing of an assignee of trade marks and licences under the Trade Marks Act 1996.

The plaintiffs, Somnus GMC Waterford Ltd and Somnus GMC Carlow Ltd, operate retail furniture and bedding outlets which had been trading under the well-known “Mattress Mick” brand. The defendants are:

Micheál Flynn, the individual behind the “Mattress Mick” persona and original trade mark owner; and
Mattress Mick Ltd, to whom Mr Flynn had assigned the relevant trade marks.

The dispute arose when the defendants:

asserted that the plaintiffs’ “territory” did not extend to Laois/Portlaoise, contrary to the plaintiffs’ understanding; and
served 30‑day notices purporting to terminate the plaintiffs’ trade mark licence agreements under a written licence dated 1 January 2025.

The plaintiffs sought wide-ranging interlocutory injunctions to:

restrain the defendants from terminating the licence agreements;
restrain the defendants from granting licences to third parties in what the plaintiffs said was their exclusive territory (including Laois/Portlaoise); and
restrain interference with the plaintiffs’ operation of their business under the defendants’ brand, including attempts (on the plaintiffs’ expanded submissions) to control domains, websites and social media assets.

The judgment is significant not only for its outcome (refusal of all interlocutory relief sought) but for the clarity with which it:

re‑states and sharpens the threshold for “serious issue to be tried” in light of Supreme Court authority;
emphasises the binding force of signed contracts and entire agreement clauses in franchise-style relationships;
declines to extend “Braganza”‑type constraints on contractual powers into this kind of commercial licensing dispute; and
assesses whether modern branding and “digital footprint” losses render damages inadequate in a commercial context.

2. Summary of the Judgment

Bolger J refused the interlocutory injunctions. Her key conclusions were:

No “serious issue to be tried” on any of the pleaded bases. The plaintiffs did not meet the threshold of a reasonably arguable case supported by evidence (as distinct from bare assertions) in relation to:
- their alleged entitlement to Laois/Portlaoise as part of their territory contrary to the signed 1 January 2025 licence;
- their argument that the termination clause only permitted termination “for cause” and not by 30 days’ notice for convenience;
- their claim that termination was invalid as being for a collateral (improper) purpose; or
- their challenge to the standing of Mattress Mick Ltd to issue or rely on the termination, in light of the assignment clause and the Trade Marks Act 1996.
Even if there were a serious issue, the balance of justice favoured refusing relief. On the Merck Sharp & Dohme test:
- the plaintiffs’ conduct (including cessation of licence fee payments) undermined their claim to equitable relief and raised an issue as to consideration;
- the alleged catastrophic effects (redundancies, goodwill destruction, “identity erasure”, “digital extinction”) were not substantiated by evidence and did not go beyond quantifiable commercial loss; and
- damages would be an adequate remedy for the plaintiffs, whereas forcing the defendants to maintain a licensing relationship and to refrain from exploiting their trade mark with others would significantly (and unjustifiably) interfere with their commercial and personality interests.
Costs indication: applying Order 99 r.4 RSC and the Court of Appeal’s decision in Yoplait Ireland Ltd v Nutricia Ireland Ltd [2025] IECA 163, the judge indicated that costs of this interlocutory application should be reserved to trial with an upper limit (by analogy with Yoplait), recognising the different standard at interlocutory stage and the possibility that fuller evidence at trial may alter the picture.

3. The Legal and Factual Background

3.1 The Mattress Mick trade marks and licensing structure

The defendants are the registered owners of two trade marks: “Mattress Micks” and “Mattress Mick’s”. The brand is heavily associated with the image and persona of the first defendant, supported by:

striking imagery and marketing materials;
uniforms and in‑store collateral; and
a significant online presence.

The plaintiffs, Somnus GMC Waterford and Somnus GMC Carlow, had traded since 2020 and 2022 respectively under these marks. For some years the arrangements rested on practice and draft written agreements that were never signed. At least some of those drafts contained a termination clause similar to that in the later formal agreement, and the plaintiffs had unilaterally terminated earlier licences in reliance on such clauses.

3.2 The 1 January 2025 written licence agreement

On 1 January 2025, a formal written licence was executed, signed by:

the first defendant (as licensor); and
a representative of both plaintiff companies (the deponent to the grounding affidavit).

The agreement contained several critical terms:

Territory: “a territory of 30 km radius in all directions from the premises”. No reference was made to Laois or Portlaoise as such.
Term: 12 months from execution, automatically renewed every 12 months “unless determined in accordance with the provisions of this agreement”.
Licence fee: €400 plus VAT per week.
Assignment/novation: the first defendant could “assign or novate any or all of his rights and obligations” to any third party.
Entire agreement clause: making this document the complete statement of the parties’ agreement.
Termination clause:
“Thirty (30) days written notice by either party Licensor may terminate this License Agreement with immediate effect, if the Licensee commits a material breach in carrying out its Business under this License Agreement, is unable to pay debts when they fall due and/or ceases to carry on its business.”

The plaintiffs’ deponent averred that he signed “without fully reviewing it” and on the alleged assurance of the first defendant that there were no change[s] to the terms under which the shops had operated and that Laois/Portlaoise was part of the Carlow territory. The court later describes that alleged understanding as “very different” from the express written terms.

3.3 The dispute over Laois/Portlaoise

In September 2025, the plaintiffs learned that the first defendant intended to open a Portlaoise concession with a different retailer. The plaintiffs wrote on 18 September and 4 October 2025 asserting:

that Portlaoise was within their territory; and
that this was covered by licence agreements they believed to be in place.

The defendants did not reply. On 7 October 2025, the first defendant, on behalf of Mattress Mick Ltd, served notices stating that both trade mark licence agreements would terminate within 30 days in reliance on the 1 January 2025 agreement’s termination clause. No reasons were given; the defendants characterised this as a no‑fault termination on 30 days’ notice.

3.4 The plaintiffs’ interlocutory application

The plaintiffs initiated proceedings and applied for interlocutory injunctions, contending that there were “serious issues to be tried” concerning:

the correct contractual terms governing their relationship with the defendants, including:
- whether Laois/Portlaoise formed part of their exclusive territory; and
- whether the contract allowed termination on 30 days’ notice without “cause”.
whether the defendants had exercised the termination power for an improper, collateral purpose (to reallocate “their” Laois territory to another retailer); and
whether Mattress Mick Ltd had standing to terminate, given that earlier dealings were with the first defendant.

They sought to preserve their ability to operate under the Mattress Mick brand and to prevent the defendants from licensing others within what they maintained was their contractual “patch”.

4. The Governing Legal Standard for Interlocutory Injunctions

4.1 The “serious issue to be tried” test

Bolger J begins by addressing the plaintiffs’ submission on the threshold test. Relying on McAndrew v Launceston Property Finance DAC [2023] IECA 43, the plaintiffs argued that:

the serious issue test is satisfied once their claims are not “frivolous or vexatious”; and
the court should simply take their factual assertions “at their height”, assuming they could be established at trial.

The judge squarely rejects this formulation as inconsistent with the Supreme Court’s decision in Hoey v Waterways Ireland [2021] IESC 34.

In Hoey, Charleton J clarified that the “fair issue” or “serious issue” threshold is:

not the same as the very low “not frivolous or vexatious” standard used for strike‑out applications; and
requires the plaintiff to show something that is “reasonably arguable rather than speculative”.

Bolger J also cites Dignam J in Rogers & Anor v Allied Irish Banks plc & Ors [2024] IEHC 50, where it was held that:

“evidence beyond a ‘mere assertion’ was required to establish a fair issue to be tried.”

On that basis, she formulates the applicable test (para. 9):

“the plaintiffs must establish a reasonably arguable case by reference to evidence that goes beyond speculation or a mere assertion.”

This is an important restatement because it:

places the emphasis on reasonableness and evidential support at the threshold stage; and
makes clear that plaintiffs cannot simply rely on pleaded theories or bare averments to cross the line into injunctive relief.

4.2 The balance of justice and Merck Sharp & Dohme

If (but only if) this threshold is met, the court must then consider the “balance of justice” (sometimes expressed as “least risk of injustice”), following the Supreme Court in Merck Sharp & Dohme. This involves:

the balance of convenience—which party would suffer more hardship from an erroneous grant or refusal of the injunction; and
the adequacy of damages—whether monetary compensation would sufficiently redress the harm suffered by each side.

Later in the judgment (para. 23), Bolger J reminds herself of the Supreme Court’s warning in Merck Sharp & Dohme that courts should be:

“sceptical around the inadequacy of damages in a commercial context.”

This scepticism proves central when she assesses claimed harms relating to branding, goodwill and “digital footprint”.

5. Application of the Serious Issue Test

5.1 Which contractual terms apply? Territory, termination, and the binding force of signatures

5.1.1 Bound by what you sign and the entire agreement clause

The first substantive question is: what are the applicable terms of the parties’ agreement?

The plaintiffs rely heavily on:

earlier draft agreements (never signed) which had included Laois as part of the Carlow territory; and
an alleged oral assurance by the first defendant that there was no change from prior terms and that Laois/Portlaoise fell within the plaintiffs’ territory.

Bolger J emphasises what she describes as “almost trite law”: a person, and especially a businessperson, is bound by what they sign. She cites the Supreme Court decision in James Elliott Construction Ltd v Irish Asphalt Ltd [2014] IESC 74, where the Court held that a party is bound by the terms and conditions of contractual documents:

“regardless of whether or not they have read the terms and conditions”.

Here:

there is a clear, signed written agreement dated 1 January 2025;
the plaintiffs’ representative signed it; and
that agreement contains:
- a territory definition by reference to a 30km radius, not by counties; and
- an entire agreement clause, expressly superseding prior understandings.

The assertion that Laois/Portlaoise must have been included, or that there was some oral assurance to that effect, faced two difficulties:

It is directly inconsistent with the written terms. A 30km geographic radius is an objective and precise criterion; Laois is not mentioned and there is no textual basis for importing county lines into the agreement.
The alleged assurance is entirely unsupported by documents or detail. The court notes that no documentation or particulars of the circumstances of the assurance were provided. It therefore classifies these as no more than “mere assertions”.

Given the entire agreement clause, and applying James Elliott, the court holds that the plaintiffs’ attempts to rely on oral assurances contrary to the written contract fall well short of a reasonably arguable case.

5.1.2 Interpreting the termination clause

The plaintiffs further argued that the termination clause did not permit termination on 30 days’ notice without cause. They contended that:

the 30‑day notice in the first part of the clause must be read as limited by the grounds set out in the second part, namely material breach or inability to pay debts; and
the reference to automatic renewal every 12 months “unless determined in accordance with the provisions of this agreement” supports a construction that the licence was functionally open‑ended save for termination “for cause”.

The court rejects this interpretation. Bolger J reasons (para. 12–13):

The second part of the clause speaks of termination “with immediate effect” in specified events (material breach, inability to pay, cessation of business). This language is inconsistent with a 30‑day notice period and indicates that it is in addition to, not qualifying, the general 30‑day right.
If the plaintiffs’ reading were correct, the licence would be effectively incapable of termination except for breach or insolvency, which the court finds “cannot be so” and unsupported by “any reasonable analysis of contract construction”.
It would also be inconsistent with the plaintiffs’ own earlier reliance on similar termination clauses when they unilaterally ended previous licence agreements. Their explanation (that those were “by agreement”) is, again, a bare assertion without supporting evidence.

The judge is not persuaded that any estoppel (i.e. a legal bar preventing the defendants from relying on the contractual termination right) is arguable on the evidence. No clear representation, no demonstrated reliance, and no identified detriment are proved to the necessary threshold.

Accordingly, there is no serious issue to be tried on the construction of the termination clause. The contract, as signed, permits either party to terminate on 30 days’ notice without cause, as well as immediate termination for specified default events.

5.2 Collateral purpose and the attempt to invoke Braganza

The plaintiffs argued that the defendants’ termination was motivated by an improper collateral purpose—namely to reassign “their” Laois territory to another retailer. To support this, they invoked the UK Supreme Court’s decision in Braganza v BP Shipping Ltd & Anor [2015] UKSC 17, where it was held that certain contractual discretions (in that case, in an employment context) must be exercised:

honestly;
rationally; and
for the purposes for which they were conferred.

Bolger J makes two key points:

Context of Braganza. She notes that Braganza concerned “very particular circumstances” involving termination of an employment relationship and indicates that such a doctrine:
“cannot easily be applied to a commercial contract”.
This signals a reluctance to extend “Braganza‑type” implied duties indiscriminately into arm’s‑length commercial licensing arrangements.
Even if Braganza principles applied, there is no arguable case. The court is satisfied there is a reasonably arguable case that:
- the contract permits a 30‑day no‑fault termination; and
- Laois is not within the plaintiffs’ contractual territory.
In that light, and with no further evidence of bad faith or irrationality beyond the plaintiffs’ inference from timing, the plaintiffs have not even crossed the “serious issue” threshold on this point.

The judge therefore expressly holds (para. 15) that the plaintiffs have not established an arguable case of collateral purpose sufficient to justify interlocutory relief.

5.3 Standing of Mattress Mick Ltd and the Trade Marks Act 1996

The plaintiffs also challenged the standing of the second defendant, Mattress Mick Ltd, to terminate the licence, arguing that:

their agreements were with the first defendant personally; and
the second defendant was a legal “stranger” to them.

This contention ran into several obstacles:

The assignment / novation clause. The 1 January 2025 licence expressly allows the first defendant to “assign or novate” any or all of his rights and obligations to any third party.
Evidence of assignment. The first defendant averred, and exhibited a deed, that he had sold his trade marks to the second defendant and assigned rights accordingly. This was not seriously undermined.
Conduct of the plaintiffs. After receiving the termination notice on 7 October 2025, the plaintiffs wrote directly to the second defendant on 9 October 2025. This is wholly inconsistent with treating the second defendant as a stranger to their rights and obligations.

On the eve of the interlocutory hearing, the plaintiffs sought to bolster their position via a new argument under the Trade Marks Act 1996, though:

no such relief had been pleaded in the plenary summons; and
these statutory arguments only emerged in written submissions served the evening before the hearing.

Bolger J holds that the provisions of the Act do not raise a serious issue to be tried, for several reasons (para. 17–18):

Section 32(3): licence must be signed to be effective.
The only signed licence is the 1 January 2025 agreement—which the plaintiffs simultaneously seek to disavow and yet rely upon. This calls into question the whole basis on which they assert rights as trade mark licensees under the Act.
No ownership or conflicting property interest.
The plaintiffs do not own the trade marks; they are merely licensees. A licence is not the trade mark itself. The court finds no conflicting interest such as might invoke s.29(3) of the Act.
Assignment and successors in title.
Sections 28 and 32(4) permit a trade mark to be transferred like other personal property and provide that, unless the licence states otherwise, it binds the successor entitled to the grantor. Given the assignment clause and deed, the second defendant was properly in the shoes of the licensor.
Section 53 on property rights/acquiescence is inapplicable.
The licence did not confer property rights on the plaintiffs, and there is no acquiescence issue of the type that provision contemplates.

The judge concludes unequivocally (para. 18):

“The plaintiffs have not established a reasonably arguable case on the basis of the provisions of the Trade Marks Act …”

Thus, there is no serious issue either as to the standing of Mattress Mick Ltd or as to any statutory limitation on the assignment of trade marks and licence rights.

6. The Balance of Justice: Convenience and Adequacy of Damages

Although she has already found that no serious issue to be tried has been made out, Bolger J goes on to consider the balance of justice on the assumption that she is wrong on the threshold. This part of the judgment is particularly instructive for franchising and branding disputes.

6.1 The plaintiffs’ conduct and the issue of consideration

The plaintiffs had ceased paying licence fees to the defendants “sometime prior” to the termination. They claimed this was by agreement. The defendants denied that, though they had not, at the time, taken steps to challenge the cessation.

The plaintiffs produced minutes of a meeting on 15 April 2025, allegedly recording the defendants’ consent to a suspension of licence fees. The defendants:

disputed the validity of these minutes; and
noted inaccuracies (the minutes refer to a pending closure of a Gorey store, yet that store had already closed 13 days before the date the minutes purport to record).

The court finds the minutes unpersuasive:

it is unclear who prepared them;
they are signed only by the plaintiffs’ accountant, without evidence that the defendants ever approved them; and
the factual inconsistency about the Gorey store further undermines their reliability.

The plaintiffs offered to restore payment of the licence fees if they obtained the injunction. Bolger J rejects the idea that this can cure past conduct. Equity assesses conduct before the impugned termination, not simply the plaintiff’s willingness to perform going forward.

On that basis, she notes a further difficulty: the enforceability of the licence agreement could be questioned in the absence of ongoing consideration, citing Harrahill v Swain [2015] IECA 36. While she does not finally determine that issue at this stage, the reference shows that the plaintiffs’ non‑payment rendered their position significantly weaker in seeking equitable relief.

6.2 Alleged catastrophic impact: redundancies, goodwill, and “identity erasure”

The plaintiffs contended that termination and non‑recognition of Laois as part of their territory would have a “very significant impact”, including:

loss of exclusivity, goodwill, brand presence and customer relationships;
forced removal of signage and online assets;
loss of staff: they averred that redundancies for their 18 staff would be “unavoidable”.

Bolger J expresses particular concern at the redundancy allegation but notes the absence of any explanation as to why such redundancies would be unavoidable. The plaintiffs still operate furniture shops and can continue to do so under different branding and marketing. The court accepts that such a transition would be challenging but finds that:

“I have not been satisfied that the difficulty of having to run their furniture shops with different branding, uniforms, online presence and so on, comes anything close to the catastrophic levels for which the plaintiffs contend.” (para. 22)

On the branding and digital side, the plaintiffs argued that a forced rebrand would cause:

“substantial unbudgeted cost” (signage, uniforms, vehicles, printed collateral, new websites, etc.);
loss of “search-engine equity and digital footprint”, requiring significant marketing spend to regain visibility; and
what they colourfully described as “identity erasure” and “digital extinction”.

However, the court points out (para. 25) that it is:

“not made clear … what exactly this is or how it is claimed to occur as a result of the termination of the licence agreements.”

In other words, while modern branding and digital presence are recognised as commercially important, the plaintiffs failed to translate these into concrete, evidenced harms that could not be measured or compensated in damages.

6.3 Adequacy of damages for the plaintiffs

Applying the Supreme Court’s guidance to be “sceptical” of claims that damages are inadequate in commercial cases, Bolger J concludes:

The plaintiffs’ losses (if any) from a rebrand—costs of signage, websites, uniforms, marketing—as well as any loss of profits—are financial and quantifiable.
Data on turnover, outgoings and profits while under the Mattress Mick brand can be compared with performance after termination. This allows for an assessment of any diminution attributable to the loss of the licence.
Though difficult, valuation of goodwill and customer connection is a familiar exercise in commercial litigation; nothing in the plaintiffs’ evidence shows that it would be impossible or excessively speculative.

The plaintiffs sought to rely on the Court of Appeal’s decision in Betty Martin Financial Services Ltd v EBS DAC [2019] IECA 327, where long‑standing customer connection and trading identity were central. There, the Court of Appeal found that:

in the specific regulatory context of a tied agency arrangement in financial services;
and in light of pressures to mis-sell financial products;
there was a serious issue that an implied term prevented termination because the agent was complying with legal obligations and resisting mis-selling.

Bolger J carefully distinguishes Betty Martin:

The commercial and regulatory context (financial regulation and consumer protection against mis‑selling) was critical to the Court of Appeal’s reasoning (see paras. 73 and 75 of that judgment as quoted).
In Somnus, there is no allegation that the plaintiffs were being penalised for compliance with external regulatory obligations or for refusing to commit legal wrongs.
Nor is there a comparable regulatory framework necessitating an implied term to give “business efficacy” or “commercial coherence” to the agreement.

It follows that the analogy with Betty Martin does not support a finding that damages are an inadequate remedy here. Instead, the court finds that:

“the damages the plaintiffs may suffer … are quantifiable as they arise from running a retail premises.” (para. 28)

6.4 Prejudice to the defendants if an injunction were granted

The plaintiffs argued that any damages suffered by the defendants could be readily quantified, e.g. by reference to lost licence fees, whereas their own harm was amorphous and hard to value. Bolger J considers this one‑sided.

She notes (para. 27) that granting the injunction would compel the defendants to:

continue allowing the plaintiffs to use their brand, including the personal image of the first defendant, together with all associated marketing assets and online resources;
refrain from licensing any other party within a territory that the plaintiffs claim solely on the basis of assertion that Laois was agreed to be included, notwithstanding the written contract says otherwise.

This would significantly constrain the defendants’ freedom to exploit their trade mark and brand; those harms are not obviously more quantifiable than the plaintiffs’ loss of a commercial branding opportunity.

Given the:

plain terms of the contract permitting termination on 30 days’ notice;
defects in the plaintiffs’ evidential foundation; and
commercial character of the dispute, with largely quantifiable losses on both sides,

the court finds that the balance of justice lies clearly in refusing the injunction.

7. Costs and Case Management

The judge turns explicitly to costs under Order 99 r.4 of the Rules of the Superior Courts, which requires the court to determine costs of interlocutory applications unless it would be unjust to do so at that stage.

Although the plaintiffs had failed to establish a serious issue on reasonably arguable grounds, Bolger J stresses that:

this is not determinative of the ultimate merits at trial;
further evidence may emerge through discovery, replies to particulars, interrogatories and oral testimony; and
the standard at an interlocutory hearing differs from that applicable at final determination.

Drawing on the Court of Appeal’s guidance in Yoplait Ireland Ltd v Nutricia Ireland Ltd [2025] IECA 163, she indicates that:

costs of the interlocutory application should be reserved to the trial, rather than finally awarded now; and
an upper limit similar to that adopted in Yoplait (80% of costs for a partially successful party) would be appropriate, though precise terms are left for a subsequent orders hearing.

She lists the matter for 10 December 2025 for final orders and case management.

8. Clarifying Key Legal Concepts

8.1 Interlocutory injunction and “serious issue to be tried”

An interlocutory injunction is a temporary court order restraining or compelling certain actions until a full trial can decide the dispute. To obtain it, a plaintiff must ordinarily show:

a serious issue to be tried—an arguable case, supported by evidence, not just speculation;
that the balance of justice favours granting the injunction—often expressed in terms of:
- the balance of convenience; and
- whether damages would be an adequate remedy.

In this case, the High Court underlines that “serious issue” means a reasonably arguable claim backed by evidence, not merely non‑frivolous pleadings.

8.2 Balance of convenience / balance of justice

The balance of convenience asks: if the court makes the “wrong” decision at the interim stage, who will suffer more? The Supreme Court has refined this into a broader inquiry into the balance of justice or least risk of injustice, particularly in Merck Sharp & Dohme.

Courts consider:

relative hardship to each side;
whether there is any pressing need to preserve the status quo; and
whether money damages are a sufficient redress if the plaintiff eventually wins at trial.

8.3 Adequacy of damages

If the harm a plaintiff fears can later be measured in money and compensated, courts are hesitant to grant an injunction. Commercial disputes often fall into this category, and the Supreme Court has urged scepticism about claims that damages are inadequate in such settings.

8.4 Entire agreement clauses

An entire agreement clause states that the written contract:

contains all the terms agreed between the parties; and
supersedes prior oral or written understandings or negotiations.

This makes it very difficult for a party to rely on alleged earlier or collateral oral assurances that contradict the written text. In Somnus, the existence of such a clause (combined with the plaintiff’s signature) was fatal to arguments that Laois/Portlaoise had been agreed territory inconsistent with the contract.

8.5 Braganza-type implied duties

Following Braganza v BP Shipping, some contractual powers—particularly in employment or quasi‑fiduciary contexts—are impliedly constrained so that they must be exercised:

honestly;
in good faith;
rationally; and
for proper purposes.

This does not mean that every contractual right in every commercial contract is subject to Braganza‑type controls. In Somnus, the High Court implicitly signals that a standard commercial termination right in a trade mark licence, especially one clearly expressed and balanced as between parties, is far removed from the kind of discretionary decision examined in Braganza.

8.6 Consideration

In contract law, consideration is the value (money, services, forbearance) exchanged for a contractual promise. A contract generally must have consideration to be enforceable.

If a licensee:

stops paying the agreed fees; and
there is no valid variation or agreed suspension,

a question can arise as to whether there is still consideration supporting the licensor’s continuing obligation to permit use of the brand. The court’s reference to Harrahill v Swain is a reminder that variations or suspensions of payment must themselves be properly agreed and evidenced.

8.7 Trade mark licence vs trade mark ownership

A trade mark owner holds the registered property right in the mark. A licensee holds only a contractual permission to use the mark, usually limited by:

territory;
duration; and
specific terms and conditions.

A licence does not convert the licensee into a co‑owner of the trade mark or give them property rights equivalent to ownership. The High Court stresses this distinction when rejecting reliance on provisions such as s.53 (acquiescence) of the Trade Marks Act.

8.8 Assignment and novation

Assignment involves transferring contractual or property rights from one party (assignor) to another (assignee). Novation replaces one contracting party with another, with the consent of both original parties and the incoming party.

Where a contract expressly allows the licensor to assign or novate rights and obligations, and the trade marks are in fact assigned (as evidenced by a deed), the assignee steps into the licensor’s shoes. That is what occurred here with Mattress Mick Ltd.

9. Broader Implications and Impact

9.1 Interlocutory injunctions: evidential rigour at the “serious issue” stage

The judgment consolidates and applies the line of authority from Hoey and Rogers:

The “serious issue” threshold is not a mere formality.
Plaintiffs must adduce evidence, not just pleadings or uncorroborated assertions.
Where material allegations (e.g. oral assurances, agreed variations, special territorial rights) are unbacked by contemporaneous documents or clear particulars, the court may conclude there is no serious issue to be tried.

For practitioners, this underlines the need to:

prepare robust, well‑evidenced affidavits, particularly where written contracts contain entire agreement clauses;
anticipate the court’s scrutiny of new legal theories introduced late (e.g. Trade Marks Act arguments surfaced only in written submissions on the eve of hearing); and
avoid over‑reliance on “taking the facts at their height” where those “facts” are contested assertions unsupported by documentation.

9.2 Commercial trade mark licensing, franchises, and no‑fault termination

The case has practical ramifications for franchise‑style brand licensing arrangements:

Clarity of territory provisions:
A territory defined in simple, objective geographic terms (e.g. radius from premises) will be given effect. Attempts to re‑read such provisions by reference to earlier drafts or unspecific assurances are unlikely to succeed against a signed contract with an entire agreement clause.
No‑fault termination clauses will be enforced as written.
Where a licence clearly allows either party to terminate on notice for any reason or no reason (in addition to “for cause” termination), the courts will not readily read this down to a for‑cause only regime. Arguments that such a construction is necessary to grant commercial “security” are unlikely to prevail, especially where:
- the plaintiffs themselves have previously invoked similar clauses to terminate; or
- there is no regulatory or consumer‑protection dimension mandating an implied limitation (as there was in Betty Martin).
Licensees are vulnerable if they do not own the mark.
The case illustrates the structural vulnerability of licensees who invest in premises, staff and marketing under another’s trade mark without:
- negotiating stronger protections against termination; or
- ensuring adequate contractual compensation mechanisms if terminated.
However, the court’s role is to apply the contract as agreed, not to rewrite it ex post to relieve the licensee of commercial risk they chose to accept.

9.3 Braganza duties and their limits in commercial contexts

While the judgment does not definitively rule out the application of Braganza-type duties to commercial contracts, it:

significantly narrows their immediate application by stressing the particularity of the employment context in Braganza; and
signals judicial reluctance to recast a clear, balanced termination clause in a commercial licence as subject to an overarching “proper purpose” limitation absent strong contextual justification.

This will be welcomed by licensors and trade mark owners who rely on no‑fault termination rights to manage their brand portfolio dynamically.

9.4 Digital branding, goodwill, and adequacy of damages

The plaintiffs’ “identity erasure” and “digital extinction” arguments raise modern issues about:

the value of domain names, websites and social media channels;
search engine optimisation (SEO) and online ranking; and
the relationship between brand personality and local customer connection.

The judgment indicates that while such assets are real and commercially important:

a party seeking to rely on them to show inadequacy of damages must provide a much clearer explanation and evidential basis;
general assertions about loss of “equity” or “footprint” are insufficient; and
courts will typically regard these as forms of commercial loss which are, in principle, quantifiable (albeit complex to evaluate) and compensable by damages.

The approach reinforces the tendency of Irish courts to reserve injunctions for genuinely irremediable harms or those involving clear property or personality rights, rather than routine commercial disputes about brand usage.

10. Conclusion

Somnus GMC Waterford Ltd & Somnus GMC Carlow Ltd v Flynn & Mattress Mick Ltd [2025] IEHC 676 is an important High Court decision on the interface between trade mark licensing, commercial franchising arrangements and the law governing interlocutory relief.

Its main contributions can be summarised as follows:

It reinforces the modern Irish approach to the “serious issue to be tried” test: plaintiffs must show a reasonably arguable case, grounded in evidence, and not merely avoid the label “frivolous or vexatious”.
It confirms the strong judicial preference to hold businesspeople to the clear, written terms they sign—especially where:
- there is an entire agreement clause; and
- the party seeking to disavow terms has previously benefited from similar provisions.
It shows resistance to importing Braganza-type implied constraints into standard commercial termination rights, absent special circumstances.
It clarifies that licensees do not gain proprietary rights in the trade marks they use; assignments under the Trade Marks Act 1996 and contractual assignment/novation clauses will ordinarily be respected.
It emphasises that, in commercial branding disputes, even significant disruption—rebranding, loss of brand association, digital repositioning—will usually be seen as quantifiable and compensable in damages, not as a basis for interlocutory injunctions, unless supported by compelling, particularised evidence.

For licensors, franchisees, and trade mark licensees, the decision is a clear message: the written licence is the central instrument. Parties seeking long-term territorial security or protection from no‑fault termination must negotiate and capture such protections expressly in the contract. Courts will enforce the bargain actually made, not the bargain a party later wishes it had made, and will require a solid evidential foundation before intervening at an interlocutory stage to restrain the exercise of clear contractual rights.