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Wednesday, 10 February 2010

Jinx for Blinxx

Spotted recently on Thomson Reuters' Lawtel subscription service is the decision last week of Mr Justice Floyd (Chancery Division, England and Wales) in Blinxx UK Ltd v Blinkbox Entertainment Ltd.

Blinxx, which since 2004 had run the website ("Over 35 million hours of video. Search it all"), sought interim injunctive relief to stop Blinkbox using the word Blinkbox in the name of its website from which the company offered its customers, among other things, the ability to choose, customise and share video and television clips. After Blinxx discovered that Blinkbox had applied to register various Community trade marks which included the word BLINK, Blinxx wrote to Blinkbox, complaining that the latter was clearly attempting to utilise Blinxx's reputation, which was to Blinxx's disadvantage. Blinxx did not however bring proceedings against Blinkbox until some years after this initial correspondence.

In the action before Floyd J, Blinxx sought interim injunctive relief, maintaining that Blinkbox was infringing its trade mark and passing off and that it had been appropriate for it to delay the commencement of its proceedings until such time as actual confusion arose in the market between the two services.

Floyd J refused Blinxx's application. In his view,
* Blinxx had known since at least 2008 that Blinkbox was providing an on-demand media service through its website but had taken no ealier steps to issue proceedings despite that knowledge. The possibility that the two services might be confused should have been apparent in the light of what Blinxx knew.
* It was wholly unreasonable and completely unjustified for Blinxx to wait to issue proceedings. In commercial terms, if Blinxx won and got its injunction, Blinkbox would have to stop using its name and would immediately face the loss of advertising revenue, potential breaches of licensing agreements and the cost of a re-branding exercise -- all of which might prove unnecessary if it were to be successful in the substantive action. On the other hand, while Blinxx would suffer only some possibility of harm to its existing business if its application was refused. This meant that there would be an element of finality to the proceedings if the interim injunction was granted.
* If Blinxx had acted promptly, the balance of convenience might have favoured the grant of an injunction. As it was, its delay was fatal.
The IPKat thought this was a real no-brainer. We've been reminded so often by the courts that a delay in seeking interim injunctive relief is apt to have fatal consequences that -- unless the Lawtel note has omitted some salient facts that spoke in Blinxx's favour -- it's difficult to see why the good judge had to be troubled by this application. Merpel says, just as we're all talking about graduated responses to file-sharers, why not have graduated responses for litigants in IP infringement proceedings? The first time you sue someone, you get two years within which you can still obtain interim injunctive relief; second time you have just six months; third time you have to commence proceedings within a week ...

Blinking reflex here
What cats mean when they blink here
How to blink at cats here
Blinking nuisance here


Gareth said...

Is it Blinxx or Blinkx? I thought it was the latter...

Jeremy said...

According to the note from which I obtained my information, the company is Blinxx and the website is Blinkx -- which are more confusingly similar to one another than either is to Blinkbox.

Anonymous said...

Jeremy- How do you find your linkx- in particular the one about the Blinking nuissance? incredible!

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