This Week’s Tech Law Round-Up

January 5, 2024

UK law

Court of Appeal confirms that use of Amazon IP complaints procedure can be threat of patent infringement 

In NOCO Company v Shenzhen Carku Technology Co Ltd [2023] EWCA Civ 1502, the Court of Appeal has agreed with the Patents Court that a complaint made to Amazon by the patent owner (NOCO) using Amazon’s UK IPR complaints procedure in relation to the alleged infringer’s products (Carku) was a threat of patent infringement. The court reviewed the legislation, the case law and the provisions of Amazon’s procedure.  It said that an specific allegation of patent infringement, with a request to stop selling the product, would be understood as a threat that if the request was not complied with, NOCO would pursue infringement through the courts. Amazon delisted the products due to the complaints. This led to a loss to Carku and it did not matter whether Amazon delisted because it perceived a threat to itself or to another party. NOCO did not want to wait for the ADR procedure to be completed before it asked for the Carky products to be taken off sale. The court rejected an argument that Amazon would always understand the procedure to be a threat of IPR litigation. It said that it would depend on what a reasonable person in the position of Amazon would have understood and more particularly, what the complaint actually said. Amazon’s infringement form only asked for neutral information, which could be a permitted under the legislation. However, NOCO provided additional information on the form which went further, by positively requesting Amazon to remove the products before any investigation had been carried out.

High Court considers former employee’s misuse of email list

In PSN Recruitments Ltd (t/a Cosmopolitan Recruitment) v Ludley & Another [2023] EWHC 3153 (IPEC), the Chancery Division allowed the claimant company’s claim in a case relating to the use of the claimant’s email list by an former employee to promote his own company. The court held that, in relation to its passing off claim, the claimant had suffered loss and damage. Further, the defendants were liable to the claimants for breach of confidence.

CAT dismisses Motorola’s challenge to CMA’s final report

The Competition Appeal Tribunal has ruled in Airwave Solutions Limited & Others v Competition and Markets Authority. The case concerned the supply of communications network services for emergency personnel via the “Airwave network” by Airwave Solutions Limited a subsidiary of Motorola Solutions, Inc. The CMA had decided that there were features of the relevant market which cause an “adverse effect on competition” (AEC) under section 134 of the Enterprise Act 2002 and imposes a charge control remedy that will reduce the price payable by the UK government for the services significantly below the contractually agreed price. Motorola sought an Order that the Decision be quashed and remitted to the CMA, and for payment of its costs because (a) the CMA erred in its approach when finding that there was an AEC, and failed to take its own findings on competitive constraints into account when conducting its competitive assessment; and (b) the CMA relied on an unlawful “profitability analysis” in reaching its conclusions on both the existence of an AEC and its proposed remedy. The Tribunal unanimously decided that there had been no failure by the CMA to take into account a relevant consideration, nor was there any inconsistency between its findings on market definition and those made in its competitive assessment; the CMA was entitled to a degree of latitude in how it approached its profitability assessment; the approach it adopted was not irrational or inconsistent. Accordingly, both grounds of review were dismissed.

Online Safety Act 2023 (Commencement No 2) Regulations 2023 made

The >Online Safety Act 2023 (Commencement No 2) Regulations 2023SI 2023/1420 have been made. They bring certain provisions of the Online Safety Act 2023 into force on 10 January 2024 and 1 April 2024.

UK government publishes draft SI on overseas regulators under Online Safety Act

The government has published a draft statutory instrument. The draft Regulations specify those overseas regulators with whom the Ofcom can co-operate under their power in section 114 of the Online Safety Act 2023. “Overseas regulator” is defined in section 114(7) as “a person exercising functions in a country outside the UK which correspond to any of OFCOM’s online safety functions” (defined in section 235). Under the power in section 114(1) of the Act, Ofcom may only co-operate with an overseas regulator for the purposes of (a) facilitating the exercise by the overseas regulator of any of that regulator’s online regulatory functions, or (b) criminal investigations or proceedings relating to a matter to which the overseas regulator’s online regulatory functions relate. The term “online regulatory functions” is defined in section 114(7).