When there is the discovery of Copyright infringement, a company will want to sue for the damage that the infringer has done to the business but a more pressing matter for the business is to put a stop to the infringing activities taking place, this is where an interim injunction is vital.
Although a cease and desist letter usually does the trick, as it often scares the infringer from carrying out further activities, sometimes further action must be taken to stop the production of infringing articles. An Injunction will be imposed by a court and will simply stop the infringer from creating more articles that cause damage to the copyright holder, this is widely used especially in the technology market. Blackberry and typo went to court, with Blackberry seeking an injunction over the production of a keyboard that looked exactly like that which was owned by Blackberry. It was decided that the product produced by Typo was an infringing article and therefore was banned from sale around the world. Blackberry is now able to sue Typo for any damage to goodwill and reputation that the product may have caused without the chance of Typo doing more damage.
Applying for an injunction is a two stage process. Firstly the claimant will apply to the court for an interim injunction, this prohibits the defendant carrying out any more infringing actions pending a trial on the case. To receive an interim injunction a court must be satisfied that this is a serious issue and that damages would be an inadequate remedy. An interim injunction will not be awarded in many situations:
- Where the defendant has put a defence of fair dealing,
- Where the Claimant has delayed in applying for the interim injunction,
- Where an injunction would not be in the public interest,
- Where the Claimant has acquiesced in the infringement,
- Where the application has been made prematurely,
- Where there is substantial doubt as to whether the Claimant will succeed in its claim for copyright infringement.
In cases of urgency where the court feels that it is likely that the defendant will destroy any evidence of copyright infringement then a court may order an interim injunction without the defendant having notice of any application.
At trial the court will consider whether an interim injunction was necessary in the first place or whether the injunction needs to be extended. Where the court is satisfied that the injunction needs to be extended then it will make a final injunction. Where the court however finds that an interim injunction was not necessary, then the claimant will be liable to pay the defendant for the damage that the injunction has caused.
The First injunction imposed in the UK was the American Cyanamid Case of 1975 with the principle being laid down by the House of Lords, with it setting the general guidelines for where it should be awarded.
- There must be a Âserious question to be triedÂ
- Damages must not be an adequate remedy for the claimant
- If the defendant claims anÂ injunctionÂ will also hurt it in a way which cannot be compensated in damages should it win at trial, the court must weigh up the Âbalance of convenienceÂ: the party that faces the most harm will succeed whether that means granting or refusing theÂ injunction.
In the United Kingdom, injunctions are uncommon due to the cost, with most being in the tens of thousands of pounds and also the fact that if at trial the court feels that an interim injunction should not have been awarded then the claimant will have to pay any damages that defendant suffers, which will also be very costly.