Pre-Action Disclosure; Non Together With Then Easy

Pre-action disclosure: assistance to short town or a licence to fish?

Macdonald v French Connection Group plc, noted so far solely on subscription service Lawtel, was a Chancery Division determination of Mr Justice Briggs final Friday, xiv July. In essence, Macdonald proposed to sue FC for copyright infringement inwards observe of the pattern on a textile that had been made into garments which FC had imported. First, however, Macdonald sought pre-action disclosure nether the Civil Procedure Rules, r.31.16, of documents held past times FC relating to sales of the garments. The sentiment was that, past times gaining disclosure, Macdonald would accept to a greater extent than of an sentiment as to the probable value of the intended action, therefore improving the chances of an out-of-court settlement. FC was non totally averse to disclosure, but was unhappy to brand a disclosure on the scale demanded past times Macdonald which, it said, would accept been burdensome as well as expensive.

Briggs J granted Macdonald's application inwards part. He held that, where an intended claim concerned alleged copyright infringement, an application for disclosure required detail analysis because an alleged victim of copyright infringement had to select betwixt seeking damages or an concern human relationship of profits. The disclosure which Macdonald sought would facilitate the making of that alternative if copyright infringement were afterward proved. Some disclosure would locomote allowed, but non on the scale demanded past times Macdonald.

is fascinated to know to a greater extent than close this. So far as he tin post away see, the IP Enforcement Directive (2004/48), which is straightaway inwards force, does non appear to justify forcing a copyright possessor to select betwixt damages as well as an concern human relationship of profits, but Briggs J was faced amongst an lawsuit arising upstream, where infringement has non yet been established. Merpel wonders how much disclosure a gauge tin post away tolerate for the sake of enabling the parties to settle earlier liability is established without appearing to locomote allowing the IP possessor to instruct on a angling expedition.


Not so easy

Another representative noted on Lawtel is Easynet Group plc v Easygroup IP Licensing Ltd, a Chancery Division determination from Mr Justice Isle of Man final Friday. In this case, upholding the determination of the Trade Mark Registry hearing officer, Isle of Man J agreed that the give-and-take grade EASY.COM (for which merchandise grade registration was sought for a broad diversity of goods as well as services) was non devoid of distinctive graphic symbol fifty-fifty if its private components, "EASY", "." as well as "COM" mightiness accept been.

says, this looks similar a straightforward application of the European Court of Justice ruling inwards the SAT.2 representative (Case C-329/02 SatellitenFernsehen GmbH v OHIM). Merpel says, damn the horribly formal writing convention for these representative notes. The parties are Easynet as well as Easygroup. In the note, however, 1 is outset referred to as "the appellant company" as well as then, mysteriously, as "C", piece the other is called "the respondent company" as well as later "E", a alphabetic lineament that could as cite to either of them. Why on public can't headnotes only state "Easynet" as well as "Easygroup"? When tin post away nosotros cutting out this "appellant" as well as "respondent" rubbish, which gets especially unpleasant where at that topographic point are counterclaims as well as both parties are appealing?