Jaani Riordan successfully appeared for the claimant (“Nintendo”) in an application for a website blocking injunction under section 97A of the Copyright, Designs and Patents Act 1988 and/or pursuant to the inherent jurisdiction of the Court under section 37(1) of the Senior Courts Act 1981.
Nintendo develops, manufactures and sells video games for the Nintendo Switch games console. The application sought to prevent access to two websites, known as NSW2U and NSWROM (the “Target Websites”), which permitted access to infringing copies of Nintendo Switch games. Nintendo sought an injunction requiring the major British retail ISPs (BT, EE, PlusNet, Sky, TalkTalk and Virgin Media) to block their subscribers from accessing the Target Websites, along with any mirror websites, domain names and URLs that may be created. The Respondents neither consented to nor opposed the application but required the proportionality of the relief sought to be determined by the court.
Mrs Justice Joanna Smith DBE held that the court had jurisdiction to make the order sought and that it was proportionate and appropriate in all the circumstances to do so. The Target Websites infringed Nintendo’s trade marks by making prominent use of them on the Target Websites, giving the false impression that the Target Websites were advertising genuine Nintendo games. The Target Websites were also infringing Nintendo’s copyright by publishing hyperlinks to infringing copies of games, in circumstances where such links were posted for profit (including advertising). In light of their audience, the popularity of the Nintendo Switch games in the UK and evidence of website traffic, the Target Websites were held to be targeted at, inter alia, the UK. Therefore the judge granted the injunction in the terms sought by Nintendo.