Swatch won its claim that 30 watch face apps infringed 23 of its registered trade marks.

Third parties developed watch face apps and Samsung made them available on its Galaxy App store. These apps were downloaded 160,000 times in the UK and EU. The e-Commerce Directive provides a defence for those hosting content. But that applies to acts of a “mere technical, automatic and passive nature”. The court found that Samsung was closely involved in, and controlled, the whole process by which the apps were made available. As such, Samsung could not show that it lacked knowledge of or control over the data. The court ruled that Samsung was primarily liable. Having reached this conclusion the court did not examine whether the app developers were primary infringers.

Lessons to learn

1. Ensure you have appropriate indemnities in your supplier or developer contracts
2. Check your insurance
3. If you commission a project and are closely involved in it, you may be liable if it infringes third party rights
4. If you approve infringing content, this might override the indemnity from your developer

If you need advice, contact me f.jennings@teacherstern.com or +44 (0) 20 7611 2338.

PS the image is a generic image from Pixabay. The actual images are in the appendix to the judgment.

This article first appeared on the Teacher Stern website.