The UK High Court has handed down its judgment in litigation brought by Shenzhen Carku Technology Co. Ltd (Carku) against The NOCO Company (NOCO) arising from take-down requests sent to Amazon with the aim of preventing sales of Carku products.
 
The full judgment can be accessed here.

Carku and NOCO are manufactures of rival car jump-starter products. NOCO has prosecuted a campaign for several years to have Carku’s jump-starter products de-listed from the Amazon UK website (representing a large market for such products in the UK), alleging that Carku’s products infringe its patent (GB 2 527 858).
 
Carku brought proceedings in the Patents Court of the UK High Court seeking declarations that the patent is invalid and not infringed and claiming damages for the loss of sales caused by the de-listing requests, on the basis that they were unjustified threats to bring patent proceedings under section 70 of the Patents Act 1977. NOCO counter-claimed for infringement.
 
The Court found that:

1. NOCO’s patent GB 2 527 858 is invalid;

2. the Carku products that NOCO had de-listed would not have infringed the patent, had it been valid;

3. that NOCO’s de-listing requests are actionable unjustified threats under the Patents Act 1977; and

4. there should be an inquiry into the damages that NOCO should pay to Carku.

 
This was the first case where the UK Court has given judgment following a trial in which there was a full consideration of the merits on whether a take-down request sent to Amazon, under the relevant Amazon IP policy, constituted an actionable threat under section 70.  All previous rulings on take-downs have been interim rulings.  
 
Powell Gilbert LLP represented the successful party Carku. 
 
Ari Laakkonen, the Partner leading the team at PG, said:
 
“This litigation demonstrates that the UK Court provides the flexibility required to control unlawful conduct in the modern online environment. Take-down requests can have the same commercial effect as a preliminary injunction, yet they are generally not accompanied by the safeguards that would routinely be ordered for preliminary injunctions, such as compensation for wrongful take-downs. The Court’s decision enables compensation to be provided to Carku in respect of Amazon de-listing requests filed by NOCO. Rightsholders would be well advised to seek legal advice before considering the use of take-down requests.”
 
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