Last July the Court of Appeal issued its decision in Cartier and Others v BSkyB and Others in which it upheld the 2014 ruling that brand owners can obtain website blocking injunctions against Internet Service Providers (ISPs).
This decision came as great news to many brand owners who are vulnerable to online counterfeits since it allowed them to take direct action against the ISPs rather than having to pursue the website operator itself. However, this was perhaps not such positive news for ISPs who were required to bear the burden, and the costs of implementing such blocking orders.
In line with this, the Supreme Court has recently granted BT & EEÂs application for permission to appeal the Court of Appeals decision on the following ground:
ÂThat the Court was wrong to hold that the Appellants as innocent parties, should be required to bear the costs of the blocking injunctions. To the contrary, as innocent parties who are discharging an equitable duty to assist, the Appellants should be indemnified against all costs, expenses and liabilitiesÂ.
Should the Supreme Court decide that rights holders will be required to cover the costs for blocking injunctions, the battle for brand owners may get harder as counterfeiting is undesirable and damages the legitimate market place for luxury goods, therefore making these owners more vulnerable to counterfeiting and getting caught in an ongoing struggle to protect their profits and reputation. Bringing on the question as to whether ISPs may then face a different challenge: recovering the costs from dissatisfied brand owners.
It will be very interesting to see what the Supreme Court will have to say on this matter…