Contempt and failure to comply with court order

Price and others v Flitcraft Ltd and others [2019] EWHC 2476 (Pat) is a straightforward (though rare - at least until recently, because just a few months ago we had Juul Labs, Inc & Anor v Quickjuul Ltd & Ors [2019] EWHC 1281 (Ch) (21 May 2019)) case of a defendant failing to do what the court ordered to repair infringements of patent and copyright, and being held in contempt as a result. There seems to be no new or startling legal principles involved but its subject-matter demands attention.

Recorder Douglas Campbell QC found that the defendants had breached the injunction in several ways. They had distributed a brochure that showed the infringing product, which amounted to an offer to dispose of the product and was therefore a breach of the injunction even without any goods being supplied. It also contained matter that infringed the copyright, which was another breach. The defendants had also failed to give an affidavit of compliance with a destruction order, so there was another breach of the injunction.

It all added up to a deliberate decision to take a casual approach to complying with the injunctions, apparently unconcerned about how quickly they complied with the order, or indeed whether they complied at all. Although they argued that some acts were inadvertent, these flowed from the deliberate decision to take a casual approach. The corporate defendants' controlling mind, the fourth defendant, was in contempt and would be sentenced later.

Transfers from IPEC to the Patents Court

Just a glance at the title will tell you that Kwikbolt Ltd v Airbus Operations Ltd [2019] EWHC 2450 (IPEC) (31 July 2019) (not yet on Bailii, only reported by PLC, whose brief report I gratefully acnknowledge, so there is a great deal more to know about this) must be a David and Goliath contest. No matter how large the claimant might be, the defendant is pretty sure to be much bigger. On the face of it, even without considering the nature of the dispute, it is likely to be exactly the sort of claim that IPEC (and the Patents County Court before it) was designed for.

Nor will it come as a surprise that the defendant should have applied to transfer the case to to the Patents Court. Litigation is driven almost entirely by cost considerations, and if you can make your opponent worried that they will run out of money in the Patents Court instead of enjoying the cost caps that apply in the Intellectual Property Enterprise Court it would be unrealistic to expect any litigator, seeking to do their best for their client, not to try to transfer it.

The question for the court hearing such an application is whether the case is complex enough to justify transfer. Does it need days of court time with loads of expert witnesses - the very opposite of the speedy operation of IPEC? HHJ Hacon thought not. With proper management, the case could be heard in two or three days.

Obviously, the defendant was much better able to afford the expense of the Patents Court than was the claimant - which was exactly why David has chosen to sue Goliath in IPEC to start with. In IPEC you accept that your damages are going to be capped at £250,000 if you win (and costs at £50,000). But that's only part of the story: an injunction might be worth a lot more to David, and cost Goliath much more dearly, so the financial cap gives a slightly misleading impression. Anyway, the damages cap is not intended to keep high-value claims out of IPEC altogether, it just means that the full value might not be realised in damages.

An injunction would, of course, be damaging to Goliath, but that did not mean that the case had to go to the Patents Court. If that court granted the injunction, it would be just as damaging. The only reason for transferring the case because of the injunction issue would be if there were a realistic risk that Goliath would be unable fully to argue against it in IPEC. The idea of making an application to a judge which basically says "we don't think your court can hear this case properly" strikes me as fundamentally unattractive, and HHJ Hacon certainly took the view that IPEC was perfectly able to deal with it so no transfer was going to happen.

Rights of audience: Law Society secures rule change for IP solicitors - The Law Society

Solicitors will have the same rights of audience in the ultra-trendy Intellectual Property Enterprise Court* as they had in the Patents County Court, the Law Society  says, claiming that its lobbying has brought about this outcome. (I wish it would work equally hard to prevent the unqualified, which as I understand it remains unlawful, use of the title 'attorney' by patent and trade mark attorneys).

Although it was the Chancellor of the High Court who announced that judges would allow solicitors to appear, our too-big-for-its-boots regulator had to stick its oar in:

The SRA has also confirmed that it will not regard solicitors appearing in the IPEC as being in breach of the rules and will change the regulations to make it clear that solicitors have rights of audience.

How kind of it.

*The utterly spurious word 'Enterprise' is what makes it ultra-trendy, although I should make clear that it's the name not the court that I am describing thus.

BBC News - Oxford University wins claim against Oxford Law School

BBC News has this entertaining story which deserves a wide audience. The Oxford Law School was located in Eastleigh, Hampshire, a railway town 62 miles down the A34 and before it became a seat of legal learning famous for the first flight of the Spitfire (manufactured nearby in Southampton), as the place where Benny Hill had his first job (on Woolworth's, and his second job, as a milkman), and as the constituency of Chris Huhne before he became Steward of the Chiltern Hundreds.

The case is not yet reported on BAILII but rest assured I will let you know when I see it there. It is a judgment of Judge Janet Lambert in the trendily-renamed Intellectual Property Enterprise Court (the 'enterprise' part allowing the audit-obsessed government to tick a box somewhere, I assume). The defence seems to have been that even a moron in a hurry would not have been deceived (the BBC report elides trade mark infringement and passing off, so it is  not clear what cause of action was involved: perhaps both), which indicates that the principal ought to attend some of the School's lectures - that hypothetical individual plays no part in determining whether deception or confusion occurs. As I wrote of that phrase in my Dictionary of Intellectual Property Law:

A regrettable expression in this day and age, first used by Foster J in Morning Star Cooperative Society v Express Newspapers Limited [1979] FSR 113 (a different day and age, perhaps). The publishers of the Communist Party newspaper sought an injunction to prevent Express Newspapers from launching a new tabloid newspaper under the name The Daily Star, which was light on politics (especially of the left-wing variety) and heavy on the sort of photographic works not seen, for ideological as well as aesthetic reasons, in the Morning Star.

The judge asked whether the plaintiffs could ‘show a misrepresentation express or implied that the newspaper to be published by the defendants is connected with the plaintiffs’ business and that as a consequence damage is likely to result to the plaintiffs’ and stated that ‘if one puts the two papers side by side I for myself would find that the two papers are so different in every way that only a moron in a hurry would be misled.’