Interflora Inc & Anor v Marks and Spencer Plc & Anor [2013] EWHC 1484 (Ch) (12 June 2013) is the latest in a saga with many chapters. Last month Arnold J held that Marks & Spencer had infringed Interflora's trade marks, through keyword advertising: this month he has granted a general injunction - as opposed to one that deals only with specific infringing acts - across the whole EU.
Such a general injunction might be thought to be disproportionate, and therefore contrary to the enforcement directive. It could have a chilling effect (something that in the depths of an English summer might almost go unnoticed) because the threat of content proceedings would be hanging over the party injuncted: but (on the basis of Hotel Cipriani Srl v Fred 250 Ltd [2013] EWHC 70 (Ch), [2013] EMTR 18 the fact that declaratory relief is available mitigates this undesirable possibility. In other words, you don't need to worry so much about going to gaol for contempt if all it takes is an application to the court to be guided on what you can and can't do. Then all you have to worry about is your lawyers' bills, although they will be smaller than they would be if a fresh application were needed or if you were hauled up for contempt.
The defendant had not managed to convince the court that the its infringement would not or was not liable to affect the functions of Interflora's CTM in other Member States, so the court applied the general rule that an injunction in a CTM case should apply throughout the Union (applying Case C-235/09, DHL v Chronopost [2011] ECR I-2801).
Such a general injunction might be thought to be disproportionate, and therefore contrary to the enforcement directive. It could have a chilling effect (something that in the depths of an English summer might almost go unnoticed) because the threat of content proceedings would be hanging over the party injuncted: but (on the basis of Hotel Cipriani Srl v Fred 250 Ltd [2013] EWHC 70 (Ch), [2013] EMTR 18 the fact that declaratory relief is available mitigates this undesirable possibility. In other words, you don't need to worry so much about going to gaol for contempt if all it takes is an application to the court to be guided on what you can and can't do. Then all you have to worry about is your lawyers' bills, although they will be smaller than they would be if a fresh application were needed or if you were hauled up for contempt.
The defendant had not managed to convince the court that the its infringement would not or was not liable to affect the functions of Interflora's CTM in other Member States, so the court applied the general rule that an injunction in a CTM case should apply throughout the Union (applying Case C-235/09, DHL v Chronopost [2011] ECR I-2801).
Posts
No comments:
Post a Comment