Sony was awarded a temporary injunction against the retailer, ElectricBirdLand, in June, but yesterday Mr Justice Pumfrey granted Sony’s request for summary judgment in the case, finding in favour of Sony without needing to hear evidence at trial. This means that ElectricBirdLand have been stopped from selling PSPs in the UK.
The case concerned the importation into the UK and online sale of PSPs – which are designed to play games, films and music on the move.
The much-desired devices have been on sale in Japan since December, and in the US since March. They were scheduled to be released in Europe at the same time as in the US, but the European launch was postponed for six months because of supply difficulties.
Impatient gamers turned to the web, and to sites that would import the games from abroad. However Sony considered that this was parallel importing and took action in the UK courts to prevent it. Parallel importing occurs where branded goods intended for one market are bought in another, taking advantage of differences in pricing and/or availability.
The practice is illegal in the EU, under a system known as the exhaustion system. This provides that trade mark rights cannot be invoked to restrain the free movement of goods bearing those marks within the EU; but they can be used to restrain the entry of such goods into the EU.
Sony therefore took action against a number of online UK retailers, winning a temporary injunction against ElectricBirdLand in June, and a full injunction against online retailer Nuplayer Ltd in July. Earlier this month Sony also filed suit against Hong Kong gaming retailer Lik-Sang.com.
Sony pressed on with its case against ElectricBirdLand, arguing that the retailer’s actions were in breach of its trade marks and that ElectricBirdLand’s apparent defence – that Sony had given consent for the use of its trade marks – was not credible.
Mr Justice Pumfrey agreed, finding that where someone asserted consent on the part of a trade mark holder to a transaction against which the trade mark holder later complained, that party had to present cogent evidence of consent.
No such evidence had been produced and therefore Mr Justice Pumfrey concluded that ElectricBirdLand had no defence. Summary judgment was therefore granted against the retailer preventing it from selling PSPs in the UK.
Neither ElectricBirdLand, nor its representatives, appeared at the hearing.
