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Major UK ISPs to Appeal Website Blocks for Trade Mark Abuse

Posted Thursday, February 25th, 2016 (9:38 am) by Mark Jackson (Score 876)
internet law uk

Several major broadband ISPs including BT, Sky Broadband, EE, TalkTalk and Virgin Media will in April go to the Court of Appeal (London) in order to argue against a 2014 ruling by the High Court, which extended court ordered website blocks to include sites that sell counterfeit goods (abuse of Trade Mark).

The original ruling (here) effectively acted as an extension to Section 97A of the Copyright, Designs and Patents Act, which prior to that case had only been used to force Internet providers into blocking access to website that were known to facilitate copyright infringement (piracy).

The case itself, which involved the owner of luxury brands including Cartier and Mont Blanc (Compagnie Financière Richemont SA), essentially sought to block websites that abuse company trademarks / logos, such as by dealing in counterfeit goods. In the end the High Court approved the action and several websites were subsequently blocked.

At the time some were also concerned about overzealous application of the law, which could in theory be used against companies like eBay or Amazon, although in reality such extreme claims are unlikely to make it past a judge and indeed they never have (none like that have ever been made).

Most recently Cartier and Montblanc have asked a court for five more websites to be blocked, including perfectwatches, pursevalley, montblancebay, montblanc.**.co and replicawatchesstore / watchmush. The ISPs contested this case, saying that Cartier and Montblanc had provided “no evidence” that their networks were being abused to infringe the Trade Marks and that the UK Trade Mark Act does not include a provision for website blocking.

The court ultimately granted the blocks, although at the same time it noted that the original ruling in 2014 was due to be appealed in a hearing scheduled for 13th April 2016 (the same ISPs will be involved) and that the outcome could in theory affect the latest case.

Judge Hacon’s Conclusion

Both sides addressed the question of permission to appeal in their written submissions. It may help the defendants to decide whether to attend the hearing on the form of the order if I say something about that now.

The claimants and defendants all took the view that whatever the outcome the losing party should have permission to appeal. That is obviously right since my judgment rests on a new development in the law created in Cartier I [the original case] which will be reviewed in April by the Court of Appeal. I will give the defendants permission to appeal at the hearing on the form of the order, unless they express any wish to the contrary.

The defendants contended that time for service of an appellants’ notice should be extended until after judgment in the appeal in Cartier I. They argued that money could be saved because the outcome of the appeal may well in effect decide the outcome of the appeal in the present proceedings which could then be resolved with minimum cost.

I can see that, but the claimants say they intend to apply to the Court of Appeal to have the appeal in this action heard at the same time as the appeal in Cartier I. Whether or not that happens is a matter for the Court of Appeal and I should not do anything that may delay matters and so affect that decision. I therefore indicate now that there will be no extension of time to serve an appellants’ notice.

At this stage we can’t see that the ISPs would have a particularly strong case to reverse the change and so we suspect that the blocking order is likely to be maintained. Never the less the whole process can be very costly for both sides.

Wiggin LLP has previous stated that an unopposed application tends to cost around £14,000 per site. On top of that the additional admin involved in maintaining the block and keeping ISPs up-to-date with related IP address changes and new URLs (Proxy Servers) for the site comes to around £3,600 per website per year.

Meanwhile ISPs also incur on-going costs as part of their work to introduce such blocks. EE previously suggested that a “near four figure sum” was involved with each update, while Sky Broadband hinted at a “mid three figure sum” and then roughly half that for future updates to the same block (i.e. under £1000). Similarly Virgin Media pegged their own annual costs at a “low five figure sum“.

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9 Responses
  1. Captain.Cretin

    Website blocking mission creep continues; what started as a law to block kiddi-fiddlers websites will end up blocking anything and everything the big guys dont want you to see.

    GFWoC anyone??

    • hadenough

      yes…anti government, anti fascism sites will be blocked.
      Btw an Act is not Law

      Acts of parliament are not Laws, they are Statutes – and according to Blacks Law Dictionary, a Statute is a Legislative Rule of a Society, given the Force of Law by the consent of the governed – by becoming a Freeman on the Land at Common Law you are expressly removing your consent to be ruled by Acts of parliament in a manner that has been lawful for almost 800 years! – Why do you think Statues are called ‘Acts? – They only Act as Laws!

      DEFINITION OF AN ACT OF PARLIAMENT (STATUTE)

      A LEGISLATIVE RULE of SOCIETY given the FORCE of the law by the CONSENT of the GOVERNED, a Rule as of a CORPORATION

      by its own definition it is not a LAW, it is only given the FORCE of law by the CONSENT of the GOVERNED

      from neuter of latin- STATUS the LEGAL CHARACTER or CONDITION of a PERSON or THING

      A LEGISLATIVE RULE of SOCIETY given the FORCE of law by the CONSENT of the GOVERNED, a RULE, as of a CORPORATION.

      Also by it’s own definition it is not Law, it is only given the force of law by the consent of the governed.

      By its own definition it onto applies to a PERSON and not a Man or a Woman.

      Then we define the word STATUTE

      A LEGISLATIVE RULE of SOCIETY given the FORCE of law by the CONSENT of the GOVERNED, a RULE as of a CORPORATION, can you please explain to me where in that definition taken from Blacks law dictionary that that says that STATUTE is law?, it can be given the force the force of law but it’s not law

      From Neuter of Latin: STATUS: the, LEGAL CHARACTER or condition of a PERSON or thing: What does our society rely on? STATUS! Yes? That’s what we want to be better in STATUS, more money, bigger car, bigger this, bigger that, better than the next door neighbours.

      Well that’s the word STATUS and it all comes from this.

      STATUS is a LEGAL CHARACTER of a condition or a PERSON or thing. It is not real, its imaginary, OK, completely imaginary.

      Also by its own definition it is not LAW, its only given force of law by the consent of the governed. Which means it will only apply to you if you give your consent, what does the word consent mean?

      So what if you don’t agree it isn’t law. It can’t be given the force of law. By its own definition it only applies to a PERSON and not a man or woman.

  2. JamesM

    That’s Ebay gone then?

    • Not ever likely to happen, generally courts will check the claims of rights / trade mark holders and they tend to focus on sites that are prolific and knowingly break the law.

  3. dragoneast

    I don’t know anything about the websites concerned. I can understand the luxury goods makers wanting to protect their reputation.

    Where I have a problem, if any, is that if the products are clearly fake (presumably indicated if nothing else by the prices) so no-one with an iota of sense is fooled and the buyers wouldn’t or couldn’t buy the real product anyway, then who is actually harmed? If anyone isn’t it the consumer, not the trade mark holder? If I choose to buy rubbish, is it anyone else’s business apart from the con-artist who sold it to me? It’s different with porn and pirated copyright where the kids are harmed and the artistes defrauded – in those cases the state should step in for the community’s sake.

    • Captain.Cretin

      But you are already into mission creep, the law they are using was EXPLICITLY created to stop paedophile websites, yet every year a new category gets added to the list of sites they will happily block. They even promised it would only be used for the original reason, yet mission creep continues.

      How long before they start to block overseas news websites or Private Eye – because they expose government abuses??

  4. Captain.Cretin

    Having read this mornings news, you can probably add UKIP to the list of websites the government will have blocked soon.

    BBC NEWS – School boy questioned by Police after viewing UKIP website on school computer.

    • Mike

      The government has stuck people in concentration camps before and sent around death squads (Northern Ireland), don’t be surprised if they do it again in the future.

  5. dragoneast

    This is the Courts rather than elected politicians. They have an inherent jurisdiction to deal with apprehended breaches of the law, otherwise the law can end up an ass forever chasing after the event once the harm has been done, or even having no effective remedy against those outside their jurisdiction. But such powers have to be exercised very carefully. That’s the issue here: damages lie for trade mark infringement, but is it necessary or proportionate to require third parties to block access to websites which sell such goods? Sure enough, it may be difficult to apprehend the actual offenders, but so it is with many other offences and there is no general duty on third parties to prevent a crime being committed. The courts should not get trigger-happy to bring third parties into their net.

    Interestingly the HRA is probably the biggest restraint on the use of the law in this way, expressly protecting individual rights, which governments can often find inconveniently in the way when they want to act on their view of the public interest. Not necessarily the same as the interest of the affected members of the public.

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