Sony wins injunction against PSP importer

[wraggster]

Online retailer ElectricBirdLand was today ordered to cease selling imported PSP consoles with immediate effect after Sony Computer Entertainment won an injunction in the high court.

Sony's application for the interim injunction claimed that EBL had infringed trade marks and was therefore selling PSPs illegally.

There were raised voices outside the court before the case was heard as a representative from law firm SJ Berwin, representing Sony, asked to hear the case for the defence. EBL managing director Dan Morelle - representing himself - refused to comply, and requested a meeting with Sony's board of directors to discuss the matter.

In court, Sony's lawyer observed that the launch of the PSP marks "an extremely important departure for Sony, in that it's the first handheld they've ever produced."

He argued that the importation and sale of PSPs would "very significantly impact the excitement and anticipation of the market and the way we can exploit that in the run-up to the September launch."

Morelle responded by observing that Sony became aware that EBL was selling imported PSPs on March 21, but did not take any action to contact him until May 9. Sony's representative said the company had needed time to investigate the matter and formulate a legal strategy. He also noted that most retailers contacted have since agreed to cease selling import PSPs.

Morelle went on to argue that Sony was attempting to "make an example of ElectricBirdLand," claiming that many other UK retailers are selling PSPs both online and in high street stores. He also claimed that EBL has sold UKP 11,000 worth of PSPs to Sony companies, an argument which Sony's lawyers say is not relevant to the case.

Morelle told the judge that he had previously offered to accept an interim injunction, with an undertaking not to sell any PSPs without giving three days' notice - providing Sony agreed to a cross-undertaking of damages, meaning it would be responsible for reimbursing EBL for any losses should the injunction later be found invalid.

When questioned as to why Sony did not accept what the judge described as a "fair and reasonable" offer, the firm's representative said that EBL did not present any reasonable defence against the injunction.

"It seems a shame that the undertaking wasn't accepted," the judge said, before concluding that "Sony does have a well arguable case." He then told the court that "the only practical course of action is to continue the interim injunction for a short period."

EBL now has 28 days to prepare witness statements before presenting its defence in court. The retailer must give 24 hours' notice should it decide to sell PSPs again, and Sony has accepted the cross-undertaking of damages.

Morelle then asked the judge if he is permitted to offer replacements to consumers returning faulty PSPs, claiming that ten per cent of units he sells are sent back.

Sony responded by asking the judge to rule that Morelle send any returned PSPs on to them, offering to supply his customers with replacement consoles after September 1. The judge ruled that this was acceptable.

Morelle also complained to the judge that "men in dark glasses" had been sent to deliver documents to his home and left his wife - who was due to give birth yesterday - feeling intimidated.

Sony argued that this had been necessary to ensure the documents were received on time, but the the judge said that such actions should not be necessary, and instructed Sony to use couriers for the purpose of delivering documents in the future.

The next hearing will take place on July 18.

[jonnie]

If I was him I would consider selling the product under a different company name, since I would assume the dispute is with Electricbirdland and Sony, and not the owner.
In the industry I work in, labour intensive, EL and PL insurance is a major cost due to claims hisory. We see many companies that shut up shop with high premiums due to this history, but restart under another name and basically their claims history is wiped clean, which is unfair for those like ourselves who carry on paying high premiums.
However, if this theory is applied, maybe he could carry on, hassle i know, until the next round of legal letters appear, the blokes' found a market, not unlike Lik-sang, play-asia etc..
Thoughts.........

[leggy]

10% of products are returned faulty

That is one hell of a percentage!!

[goblindojo]

However, if this theory is applied, maybe he could carry on, hassle i know, until the next round of legal letters appear, the blokes' found a market, not unlike Lik-sang, play-asia etc..
Thoughts.........

Sadly, grey imports are illegal in the EU, where we have a regional consumption of trademarks. This means that the mark holder cannot prevent you from redistributing an item released with the trademarks holder's consent elsewhere in the EU (the trademark rights being consumed), but they can prevent you from using the mark for a product not released in the EU, as in the case of the PSP.

Now, while Sony's action against the company is directed at that company, the intentional infringement of a trademark is a criminal offense under section 92 of the Trade Marks Act of 1994. Thus, if he continues infringing, he opens himself personally up for criminal prosecution.

Disclaimer: I am a law student, but not very versed in British/English/UK law (I'm not even sure about how the differences within the UK works). This is from my understand of EU trademark law and some quick research. Needless to say, if you think this is legal advice you're pretty stupid.

[jonnie]

No, this is not legal advice and was never intended, hence the remark 'thoughts...'. What I was trying to point out was that trying to do things genuinely and honestly you get penalised.