Cartier v BskyB Blocking Injuctions for Trade Marks

Arnold J orders the blocking of more UK ISPs- Cartier v BSkyB

This judgment is very important for UK law. There is no specific provision in our law that allows the holders of trade marks to obtain an injunction against internet service providers that have actual knowledge of another person using their services to infringe their rights.

The traditional ecosystem for blocking injunctions in the UK is S97A of the Copyright Designs and Patents Act 1988. This section was adapted in to our law by Article 8 (3) of the InfoSoc Directive.

At the time of transposing this directive in to UK law, the Government thought that it did not need to take any action to copy the third sentence of Article 11 in to its own law.

This forgotten provision states that “Member States shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right…”

In the absence of this article in our law, S97A, which applies to copyright has had to be expanded to incorporate trade marks in its scope of protection.

Arnold J on Thursday morning ordered the biggest website blocking in a single application, this country has ever seen. 21 Websites will be blocked overall, all using the Bittorent P2Pfile sharing protocols.

The claimants were record companies claiming on their own behalf and in a representative capacity on behalf of the members of the British Record Industry and Phonographic Performance Ltd.

The defendants were major UK ISPs that have a market share of 95% of UK broadband users.

The 21 websites provided online directories of content in which users could search for content and download it unlawfully.

The judgement found that he websites infringed copyright on three grounds:

(1) by communicating copyright protected works to the public

(2) by authorising infringements by UK users

(3) by acting as joint tortfeasors with UK users.

Arnold J orders the defendants to block access to the infringing websites and similarly to what he stated in previous judgments, the ISPs should share the costs of implementing the orders.

Websites that will be blocked include:

This is an important case for trade marks and will no doubt be cited in future for trade mark injunctions.

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