High Court orders Internet Service Providers to block access to trademarks

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CARTIER International AG v. British Sky Broad High Court orders Internet Service Providers to block access to trademark infringing websites

  1. Challenging Internet Service Providers

In October 2014, the High Court ordered an internet service provider (ISP) to block access to websites marketing and selling trademark infringing counterfeit goods, even though there is no direct provision authorizing the court power to make this order.[1] Ultimately, this shows an increase in willingness to grant injunctions against ISPs that provide services which infringe on trademark, and other intellectual property rights (IPRs).

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  1. Blocking Injunctions – Cartier v. Sky

In Cartier International v. British Sky, claimants owned a significant number or British registered trademarks, including Cartier.[2] Claimants sought court orders requiring the ISPs to block access to six websites that infringed on its trademarks by advertising and selling counterfeit goods through ‘target websites’. This decision was highly anticipated as prior to its holding there was no specific provision under United Kingdom (UK) law which affords trademark holders the right to seek and obtain an injunction against an ISP that had actual knowledge of another person using their Services to infringe their rights. Therefore, at issue is whether the Claimant can successfully order ISPs to block access to websites, which allegedly infringe on claimants trademark rights.

  1. Court’s Analysis
  1. “Does the Court have jurisdiction to make an order of the kind sought?”

Before hearing the merits of the case, Mr. Justice Arnold of the High Court easily identified a jurisdictional base to do so. The court based its reasoning on two other analogous cases, both afforded the Court the jurisdiction to issue website blocking injunction of the kind the Claimant sought.[3] Regardless of the consistent case law precedent, the Court found that jurisdiction is met via s31(1) of the Senior Courts Act 1981. This allowed the court to grant blocking injunctions as the court finds convenient to do so.[4] Thus, the jurisdictional element was met.

  1. “Since the Court has jurisdiction, what are the threshold conditions that must be met to issue an order?”

Having found a jurisdictional basis to hear the case, the Courts analysis turned to whether the conditions are met to issue a blocking order in this dispute. Mr. Justice Arnold continued the legal analysis by establishing the four criteria to grant an injunction: (i) ISPs must be intermediaries,[5] (ii) either the users and/or the operators of the website must be infringing the claimant’s trademark, (iii) the user and/or operators of the website must use the ISP services to infringe the claimant’s trademark, and (iv) the ISPs must have actual knowledge of this.[6] The last element is where the court struggled most.

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