Sony’s IP Under Threat Again

A High Court ruling is to give a helpful meaning as to the meaning of IP ownership in the KK Sony Computer Entertainment and another v Pacific Game Technology (Holding) Ltd [2006] EWHC (Ch) 2509 case.

Sony via its UK subsidiaries marketed its latest PSP PlayStation gaming console in over 100 countries, including the 24 other member states of the EU. The branded PlayStations are protected by five Community trade marks, a UK registered trade mark, a UK registered design and a Community registered design and copyright in the computer’s programs, menu icons, surface design and the user manual. This is without a doubt an extensive portfolio of intellectual property rights.

It was all going smoothing until, Hong Kong company, Pacific decided to launch a website that hosted pages offering video games, consoles and accessories, video games all relating to the PSP. These products were exclusive to be marketed in only Japan. Sony sought a court order to protect its IP rights and applied for an order for seeking delivery up, disclosure of names, and an enquiry as to damages or an account of profits and costs.

 Before granting an order the Court considered the following: (i) whether Sony had agreed to the sale of those PSPs in the EEA – in which case its IP rights would have been exhausted and (ii) whether Pacific, by offering the goods for sale on its website, had committed any infringing acts.Â

The Court finally sided with Sony’s application for relief. In the Court’s ruling the residing Judge provided that the offer for sale had taken place not in Hong Kong but in the EEA. It was also evident that the offer had been made without Sony’s consent. This was a key fact. The offer to sell was made via the intermediary of a website which did not mean that the offer had not been made within the EEA:

“… It would make no sense if intellectual property rights in the EEA could be avoided merely by setting up a website outside the EEA crafted to sell within it” (para.27).Â

The Court granted the application for the above interim relief.Â

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