Case Status: Supreme Court hearing Jan 2018; Judgment expected some time during 2018.
The Open Rights Group is currently intervening in a legal challenge in which French jeweller Cartier have been seeking the courts to order ISPs to block websites which sell counterfeit Cartier products.
This page offers a jargon-free overview of this legal challenge. For more details, please see this wiki page.
After discovering counterfeit versions of their goods available online in the UK and conducting test purchases to verify such goods were indeed being sold, Cartier commenced proceedings in the High Court seeking that the court provide an injunction ordering ISPs in the UK to block the offending websites.
The power to seek such an injunction is available to copyright owners under the Copyright, Designs and Patents Act 1988, but Cartier were seeking the same kind of order in respect of their trade marks. For the Court to allow the copyright laws to also apply to trade marks, it would represent a vast expansion of powers beyond what was written in the actual legislation.
With the help of lawyer David Allen Green, ORG intervened in Cartier's legal challenge in an attempt to encourage the courts to ensure that, if such blocks are allowed, sufficient sensible safeguards against abuse are also implemented. ORG have been thanked for their submissions, which have had a substantial impact on the case so far.
In particular, the court agreed with ORG that greater safeguards against abuse were needed and that blocking orders, if granted, should be set to expire after 2 years to ensure they are being regularly checked for validity.
Unfortunately, the courts have consistently ruled in favour of Cartier, ruling that they are entitled to seek blocking injunctions from the court. This means they are able to apply to have the Court order ISPs to restrict access to the counterfeiting sites.
Some ISPs appealed this decision to the UK's highest court ‐ the Supreme Court — but the Court did not grant permission to the ISPs to appeal the core decision. The Court insisted that it would respect the ruling of lower courts and that trade mark owners would be able to seek blocking injunctions. Permission was only granted to the ISPs to appeal against whether they could reasonably be expected to bear the cost of implementing and maintaining the blocks.
ORG attended the Supreme Court hearing in the case in January 2018, and a decision is expected in the coming months.
If you want us to keep you informed, or support our work, you can join ORG here.