KK Sony Computer Entertainment & Anor v Pacific Game Technology (Holding) Ltd, Court of Appeal - Patents Court, October 18, 2006, [2006] EWHC 2509 (Pat)

Resolution Date:October 18, 2006
Issuing Organization:Patents Court
Actores:KK Sony Computer Entertainment & Anor v Pacific Game Technology (Holding) Ltd
 
FREE EXCERPT

Claim No: Case No: HC 05 C02121

Neutral Citation Number: [2006] EWHC 2509 (Pat)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

PATENTS COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 18th October 2006

Before :

HIS HONOUR JUDGE FYSH QC, SC

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Between :

| |(1) KK SONY COMPUTER ENTERTAINMENT | |

| |(2) SONY COMPUTER ENTERTAINMENT EUROPE LIMITED | |

| | |Claimants |

| | | |

| |- and - | |

| |PACIFIC GAME TECHNOLOGY (HOLDING) LIMITED |Defendant |

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Adrian Speck instructed by S J Berwin LLP appeared for the Claimants

The defendants did not appear

Dates of hearing: 10 and 18 October 2006

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JUDGMENT

Introduction

  1. This is an undefended infringement action involving certain of the claimants' registered designs, registered trade marks and copyrights. It is also another 'exhaustion of rights' case. – with a factual variation in that it involves sales of the claimants' goods into the EEA via an internet website. At the conclusion of the hearing I indicated that I would give judgment for the claimants. I now set out my reasons for coming to this decision.

    2 Both claimants are corporate incarnations of the well-known Japanese electronics group known to one and all as 'Sony'. The second claimant is in fact a UK company which is a subsidiary of the first claimant, a Japanese company. I shall refer to both claimants collectively as 'Sony'. Mr Adrian Speck who represented them, told me that this is one of a number of similar actions taken by Sony involving the latest version of their highly successful family of computer game systems marketed under the name PlayStation which the second claimant[1] markets and sells in over 100 countries that use the PAL system of television transmission – including significantly, countries within the EEA. More particularly, the rights in issue are associated with the hand-held (or portable) console with which the game is played and together with items such as the packaging associated with it. I shall henceforth refer to these consoles as 'PSP Consoles[2]'.

  2. The defendant (which did not appear at this hearing) is a company incorporated in Hong Kong having a registered office in New Territories. It operates a website with the URL www.lik-sang.com. The website has been set up to offer for sale a variety of commercial video-games, consoles and accessories for playing music, video-games and suchlike. Mr Speck submits that the target of such solicitation is customers in the EEA and in the UK in particular – though going by past experience (see below) this would not be accepted by the defendant. At Mr Speck's invitation, I have visited the defendant's website and in the short time I have spent at it, have been able to confirm most of what Mr Speck has told me about it. I shall henceforth refer to the defendants as 'Pacific' though they trade under the Chinese name 'Lik-Sang'.

  3. This action has some history about it. Sony have sued Pacific both here and in Hong Kong. The Hong Kong action was commenced a few days before the present action and, so I was told, is ongoing. Though there is undoubtedly overlap between these actions, they are not identical in scope. Before entering an appearance in London, Pacific applied for an order that the court should decline to exercise any jurisdiction over this case on the basis of forum non conveniens (see CPR r 11, 'Disputing the Court's Jurisdiction'). They instructed counsel to argue the application and after a hearing before Kitchin J., the application was dismissed. Kitchin J's judgment is dated 2 March 2006 and contains a thorough review of all the issues then facing him – many of which are also relevant for present purposes. I shall be referring to this judgment hereafter. I should add that Kitchin J ordered Pacific inter alia to pay a sum by way of costs and to enter a further acknowledgement of service. Pacific have done neither.

  4. In this case, Sony could no doubt have moved for judgment in default of defence. Mr Speck told me however that there were sound commercial reasons why his clients preferred to receive a reasoned judgment of the Court. The first was because they believed that it would be easier thus to obtain effective relief which could be enforced against the defendant in Hong Kong. For present purposes however, I need not go into the procedural reasons behind this decision. Moreover, a...

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