SONY IN ELECTRICBIRDLAND

Here's a case swiftly noted by Butterworth's All England Direct subscription service and also by Sweet & Maxwell's Lawtel: Kabushiki Kaisha Sony Computer Entertainment and another v Electricbirdland Ltd, a ruling yesterday by Mr Justice Pumfrey in the Chancery Division.

Sony claimed that Electricbirdland infringed some of their Community and United Kingdom trade marks, Electricbirdland having imported into the UK PLAYSTATIONS that were originally marketed outside the European Economic Area (EEA). Sony, alleging infringement of its PLAYSTATION word mark and associated logos, sued for infringement and applied for summary judgment. Electricbirdland denied infringing, saying Sony consented to the importation -- an allegation Sony denied.

The IPKat remembers when play stations looked like this ...

Pumfrey J allowed the application and gave summary judgement in Sony's favour. He said that the hurdle facing any defendant who wanted to argue that a trade mark owner consented to the re-marketing within the EEA of goods first marketed outside the EEA,was a high one. He had to be able to produce cogent evidence that the proprietor consented knowingly to the transaction(s) that formed the subject matter of the complaint. In this case, since it was simply impossible to infer that Sony consented to Electricbirdland's activities, there was no arguable defence of consent.

If on the facts you don't have a defence, summary judgment can't be avoided

The IPKat agrees that spurious and unlikely defences should not be given a chance to stand in the way of justice, but he sees a distinction between cases where the defendant raises a weak legal case (which can still be argued and should not be swept aside for the sake of justice being seen to be done) and cases where he raises a weak factual defence (where everyone in the court knows he hasn't a serious chance -- which is what summary judgment is so good for).

Merpel says, but I thought everyone was entitled to their day in court ...