Happy Days For Ip Claimants Every Minute Eurodefence Fails

The Register, who got it from Out-Law. He's directly read it on the LexisNexis Butterworths subscription-only service equally well, thence it must hold upward truthful ...

The illustration is Microsoft Corporation v Ling together with others [2006] EWHC 1619 (Ch), a illustration heard terminal Mon past times Judge Richard Havery QC, sitting equally a guess of the High Court, Chancery Division.

The claimant was, well, Microsoft. The numerous defendants included Digital Now! Limited, a fellowship that was a lawful distributor of Microsoft software, equally good equally employees together with directors of that company. Miocrosoft's licence understanding amongst its authorised distributors set downwards strict limits for the purpose together with replication of all software together with the number together with provision of associated certificates of authenticity, (COA) together with end-user licences. Under the terms of those agreements the defendants were forbidden to merchandise inwards COAs that did non degree business office of a defined software bundle together with limits were imposed on the number of copies of software that could hold upward made.

It turned out that the defendants were operating exterior the terms of the licence together with that they were dealing inwards counterfeit software. Microsoft sued for diverse IP rights infringements inwards relation to the distribution of calculator software, maintaining that the defendants had traded inwards COAs that were non to hold upward sold separately equally good equally imitation COAs. Seeking summary judgment, Microsoft too claimed that the defendants had traded inwards genuine software without authorisation, equally good equally dealing inwards counterfeit software. The causes of activity included passing off past times trading inwards instruments of deception, merchandise grade infringement together with copyright infringement, seeking (among other things) additional damages nether department 97(2) of the Copyright, Designs together with Patents Act 1998.

The defendants conceded that they were selling fakes together with acting inwards breach of their licence, but maintained that the agreements were unlawfully restrictive together with contravened EU Law. In whatever event, Microsoft had exhausted its merchandise grade rights past times putting its software on the market.

The deputy guess allowed Microsoft's application for summary judgment, asset that the defendants didn't accept a promise inwards hell of succeeding at trial. In his persuasion

* The granting of express licences on agreed terms was non of itself a contravention of anti-competition laws.

* The defendants provided no prove of restrictive merchandise practices.

* After conceding that they had counterfeit products inwards their possession together with on the prove itself, the defendants had no existent prospect of success of defending the claim that they had knowingly traded inwards counterfeit products.

* As to passing off together with merchandise grade infringement, all the defendants were involved inwards the committee of wrongs together with none had a prospect of succeeding at trial.

* There was no existent prospect of successfully defending the claim for additional damages.

To give readers a experience for this case, here's around dialogue betwixt Kenneth Anderson (a exam purchaser) together with Edward Hill (one of the defendants) on four August 2005:

EH: Right, I've got Office 2003. Is he afterwards a total licence?

KA: He's afterwards 1 of them together with he's afterwards around stickers equally well.

EH: You don't know if he wants full, equally for the Office I take away to know if he wants a total licence.

KA: What's the divergence at that spot cost-wise?

EH: Well, the price. I tin give the sack produce you lot an Office 2003 without a licence for eighty-five quid. The licensed version is 1 hundred together with eighty-five quid. With the eighty-five quid 1 we're non lining Bill Gates's pocket. If he's installing it inwards a concern or something he powerfulness desire to produce the licence. He powerfulness desire to produce it properly... If it's only for abode together with thence become for the unlicensed.

KA: Get me 1 of them then.

EH: OK.

KA: Them stickers, they're a adept buy, aren't they?

EH: Yes, it's commonly 1 hundred together with eighty-five quid for that product. It's because they're copies there's only no licence amongst them.

marvels that, thence presently afterwards the despair of IP owners next Sportswear (here) together with Doncaster v Bolton (The Register, who got it from Out-Law. He's directly read it on the LexisNexis Butterworths subscription-only service equally well, thence it must hold upward truthful ...

The illustration is Microsoft Corporation v Ling together with others [2006] EWHC 1619 (Ch), a illustration heard terminal Mon past times Judge Richard Havery QC, sitting equally a guess of the High Court, Chancery Division.

The claimant was, well, Microsoft. The numerous defendants included Digital Now! Limited, a fellowship that was a lawful distributor of Microsoft software, equally good equally employees together with directors of that company. Miocrosoft's licence understanding amongst its authorised distributors set downwards strict limits for the purpose together with replication of all software together with the number together with provision of associated certificates of authenticity, (COA) together with end-user licences. Under the terms of those agreements the defendants were forbidden to merchandise inwards COAs that did non degree business office of a defined software bundle together with limits were imposed on the number of copies of software that could hold upward made.

It turned out that the defendants were operating exterior the terms of the licence together with that they were dealing inwards counterfeit software. Microsoft sued for diverse IP rights infringements inwards relation to the distribution of calculator software, maintaining that the defendants had traded inwards COAs that were non to hold upward sold separately equally good equally imitation COAs. Seeking summary judgment, Microsoft too claimed that the defendants had traded inwards genuine software without authorisation, equally good equally dealing inwards counterfeit software. The causes of activity included passing off past times trading inwards instruments of deception, merchandise grade infringement together with copyright infringement, seeking (among other things) additional damages nether department 97(2) of the Copyright, Designs together with Patents Act 1998.

The defendants conceded that they were selling fakes together with acting inwards breach of their licence, but maintained that the agreements were unlawfully restrictive together with contravened EU Law. In whatever event, Microsoft had exhausted its merchandise grade rights past times putting its software on the market.

The deputy guess allowed Microsoft's application for summary judgment, asset that the defendants didn't accept a promise inwards hell of succeeding at trial. In his persuasion

* The granting of express licences on agreed terms was non of itself a contravention of anti-competition laws.

* The defendants provided no prove of restrictive merchandise practices.

* After conceding that they had counterfeit products inwards their possession together with on the prove itself, the defendants had no existent prospect of success of defending the claim that they had knowingly traded inwards counterfeit products.

* As to passing off together with merchandise grade infringement, all the defendants were involved inwards the committee of wrongs together with none had a prospect of succeeding at trial.

* There was no existent prospect of successfully defending the claim for additional damages.

To give readers a experience for this case, here's around dialogue betwixt Kenneth Anderson (a exam purchaser) together with Edward Hill (one of the defendants) on four August 2005:

EH: Right, I've got Office 2003. Is he afterwards a total licence?

KA: He's afterwards 1 of them together with he's afterwards around stickers equally well.

EH: You don't know if he wants full, equally for the Office I take away to know if he wants a total licence.

KA: What's the divergence at that spot cost-wise?

EH: Well, the price. I tin give the sack produce you lot an Office 2003 without a licence for eighty-five quid. The licensed version is 1 hundred together with eighty-five quid. With the eighty-five quid 1 we're non lining Bill Gates's pocket. If he's installing it inwards a concern or something he powerfulness desire to produce the licence. He powerfulness desire to produce it properly... If it's only for abode together with thence become for the unlicensed.

KA: Get me 1 of them then.

EH: OK.

KA: Them stickers, they're a adept buy, aren't they?

EH: Yes, it's commonly 1 hundred together with eighty-five quid for that product. It's because they're copies there's only no licence amongst them.

marvels that, thence presently afterwards the despair of IP owners next Sportswear (here) that summary judgment would never in 1 lawsuit again hold upward ordered against anyone raising a Eurodefence, that real affair has only happened. Merpel says, good it was an extreme case: the defendants look an unusually crooked bunch: would the same final result accept occurred if they'd been adept boys together with girls? Both Kats Federal Reserve notation that the courtroom was prepared to give summary judgment fifty-fifty on the additional damages point, which is hard plenty to persuade a trial guess of at the best of times - tin give the sack this hold upward anything to produce amongst the fact that the guess was however around other non-IP somebody rather than a specialist judge?

Judgment inwards total on BAILII here