Intermediary IP Injunctions in the EU and UK Experiences: When Less (Harmonization) is More?

Abstract

This contribution provides an overview of EU and UK experiences, and focuses on certain threads that have emerged from relevant case law in the area of intermediary IP injunctions.

Following a review of CJEU decisions, the article considers UK case law in the area of blocking injunctions. It discusses two key issues arisen from the experience of this Member State (the possible expansion of blocking injunctions to different areas and intermediaries, and the responsibility for the costs of injunctions), including whether – lacking an unambiguous legislative framework – the parallel evolution at the CJEU level may provide interpretative guidance.

The principal conclusion is that, despite EU harmonization efforts in the area of IP enforcement, there are significant gaps in the resulting framework. This prompts the question (which is answered in the affirmative) whether, in the context of the EU Commission’s Digital Single Market Strategy, the EU should merely reform the current enforcement framework or – together with this – also push the boundaries of harmonization further.

Keywords: injunctions, intermediaries, ISPs, UK IP law, Article 8(3) InfoSoc Directive, Article 11 Enforcement Directive, s37(1) SCA, s97A CDPA, Arnold J, L'Oréal, UPC Telekabel, Scarlet, Netlog, Tommy Hilfiger, Mc Fadden, Cartier, Newzbin 2