What's a website blocking order and why is it useful?
Nintendo was granted an early Christmas present by the Honourable Mrs Justice Joanna Smith DBE - a website blocking order (Nintendo Co Ltd v British Telecommunications Plc & Ors).
What is a website blocking order?
The order requires the six biggest UK internet service providers (ISPs) to block access to two websites, NSW2U and NSWROM (as well as related sites) that provide links to sites offering pirate Nintendo Switch games.
There has been a long history of website blocking orders in the UK and many brands from gaming, to film and luxury goods have found them to be a valuable weapon for preventing infringement of copyright-protected content.
As in previous cases, the ISPs did not challenge the order.
Mrs Justice Smith accepted that the games are protected by copyright as both literary works and artistic works, and that the website operators perform acts of communication to the public in the UK.
She also found that the website operators infringed various Nintendo UK registered trade marks by using identical signs in relation to video games and downloadable programs.
What does this mean?
The decision confirms that UK courts will issue orders to block access to counterfeit and pirated content, including music, movies, sports or games.
The order was granted following a short hearing, at which Nintendo presented evidence about the extent and nature of the infringing websites, use of trade marks and social media profiles, including how they target UK users and the number and trends in visitors. The fact that the hearing took place in the IP Enterprise Court and that the ISPs did not challenge the order both helped to keep the costs down as far as possible.
While the process for granting these type of website blocking orders is now well-established, it is important that rights owners prepare their case thoroughly to provide evidence of the nature and scale of infringement and why an injunction is necessary and proportionate.