Readers of this blog may remember (see here) the Court of Appeal’s (CoA) decision last year, upholding the lower court’s decision that blocking injunctions applied to trade marks as well as copyright works. The effect of this was that ISP providers such as BT and Sky were required to implement measures to prevent customers from using their broadband services to access trade mark-infringing content.
As with many things in life, the thorny issue of cost (and who should bear the expense of implementing a blocking injunction) arose: should it fall to the rights holders or the ISP providers? The CoA (by majority) took a pragmatic view and held that the ISPs should bear the cost as it was simply an operational cost of doing business and because it was most cost-effective for the ISPs to tackle the infringements at source. Briggs L.J. (dissenting) sided with the ISPs and held that the rights holders should pay the costs associated with a blocking injunction.
It is understood that BT & EE have been granted permission to appeal to the Supreme Court (SoC) on the point of who bears the costs of implementing the blocking order. We await the SoC’s decision with interest, as there is no EU legislation requiring a Member State to compel one specific party to bear the costs.
The practical implications of the SoC’s decision could be significant. Were the SoC to side with Briggs L.J., then the accessibility of trade mark blocking injunctions as a whole may be called into question. There is a danger that this could contribute to a two-speed online trade mark infringement system, with only the largest rights holders having the necessary resources to obtain and implement a blocking injunction. In an ever-growing world of e-commerce and online activity, this could freeze out many aggrieved parties who would otherwise have a valid claim.
We shall provide further updates on the Supreme Court’s hearing of the appeal once we know more…