The High Court in England ruled in Sony's favour and against
Lik-Sang, the trading name of Pacific Game Technology (Holding)
Ltd, which sells video games consoles and accessories at
Lik-Sang.com.
Lik-Sang sold equipment that Sony made available for sale only
in Japan. Sony argued that Lik-Sang's website targeted the UK and
Europe and that in selling into those markets Lik-Sang infringed
its trade marks, copyright and registered design rights in the
PlayStation Portable consoles and accessories sold by Lik-Sang.
Lik-Sang's sales to the UK are a form of what is known as
parallel importing, where branded goods intended for one market are
bought in another, taking advantage of differences in pricing
and/or availability.
Lik-Sang applied to the High Court, arguing that English courts
had no jurisdiction over the case, but lost. It did not submit a
defence to the High Court in the case against Sony.
Judge Fysh said that the case rested on two questions: was
Lik-Sang allowed to sell the goods inside Europe, and did the
website target the UK and Europe as its market?
Fysh said that European Court of Justice precedent ruled that a
rights owner's consent was needed in order for goods from outside
of Europe to be sold inside Europe. "The ECJ has held that putting a
trade marked product on the market outside the EEA does not constitute consent
on the part of the trade mark proprietor to the product thereafter
being marketed within the EEA," he wrote in his judgment.
He said that Lik-Sang could not be allowed to resell the goods
simply because it had not specifically been told not to. "Implied
consent cannot be inferred from the fact that the proprietor of the
trade mark has not communicated to all subsequent purchasers of the
goods placed on the market outside the EEA his opposition to
marketing within the EEA," he wrote.
In considering whether or not the site constituted marketing in
the UK, Fysh noted that the site was in English, that its default
currency when accessed from the UK was pounds sterling and that
manuals available on the website were in English and other European
languages. He ruled that the site did represent marketing and sales
in the UK and ruled in favour of Sony.
"It would make no sense if intellectual property rights in the
EEA could be avoided merely by setting up a website outside the EEA
crafted to sell within it. Were the acts of which complaint is made
to have been committed physically within the EEA they would
unarguably have been infringing acts. I cannot see how the
electronic intermediary of a website which focussed at least in
part on the EEA would make them any less so," he wrote in his
judgment.
"The acts of which complaint is made have in my view been
perpetrated not in Hong Kong but here in the EEA, and without
Sony's consent," he concluded.
