The IP Enterprise Court has granted Nintendo Co Limited an injunction ordering six internet service providers (ISPs) to block access to two websites (the websites) which permitted access (via links) to third party websites from which pirate Nintendo Switch video games could be downloaded, infringing copyright and Nintendo’s registered trade marks (RTMs).
The Court granted the order under section 97A of the Copyright, Designs and Patents Act 1988 and section 37(1) of the Senior Courts Act 1981. Regarding copyright infringement, the judge found that:
|•||The users of the websites infringed the copyright in the works (the source and object code for the Nintendo games, together with related underlying works). ISP subscribers located in the UK performed acts of copying in the UK when they connected to the websites and used them to access and download files containing the unauthorised Nintendo games onto electronic devices located in the UK. The judge inferred from the high number of visits to the websites by UK consumers (including repeat visits) that downloading was taking place and that copies of the works were therefore being created in the memory of those devices.|
|•||The operators of the websites authorised or were liable as joint tortfeasors for such copying by UK users. The operators also performed acts of communication to the public in the UK by posting links to unauthorised Nintendo games on the websites, since the evidence indicated that the websites were operated for profit, so that it was to be presumed (applying GS Media) that the act of posting a link amounted to a communication with the public.|
|•||These acts of communication to the public were targeted at the public in the UK. Relevant factors included that the websites included games which were extremely popular in the UK market, and the very substantial number of visits to the websites by UK consumers.|
The judge also found that there was infringement of various Nintendo UK RTMs, since the operators of the websites were using, in the course of trade, signs identical to those marks in relation to identical goods contrary to section 10(1) of the Trade Marks Act 1994, and were targeting average consumers in the UK.
Source: Practical Law