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.
