Cartier International v BT and another: UK Supreme Court rules costs of website-blocking orders do not have to be paid by internet service providers

The UK Supreme Court has ruled that the costs for blocking access to websites selling counterfeit products do not have to be paid by internet service providers (ISPs). When a website-blocking injunction is obtained against an ISP, as an innocent intermediary, to prevent the use of its facilities by wrongdoers for unlawful purposes, the IP rights-holders whose commercial interests are being protected cannot look for a contribution to their legal costs from anyone but the infringers.

In 2014 the English High Court granted Cartier an injunction to prevent major UK ISPs, including BT, Sky, TalkTalk, EE and Virgin Media, from allowing access to websites selling counterfeit luxury goods such as jewellery and watches.  Importantly, the Cartier case was the first to confirm the availability of website-blocking injunctions in the context of trade mark infringement; until then such orders had been granted only against copyright infringement. The High Court also ordered the ISPs to pay Cartier the costs incurred in implementing the website-blocking order. Two of the ISPs appealed arguing that they should not have to pay such costs. In 2016, the Court of Appeal dismissed the appeal and confirmed that the ISPs should pay the costs of the blocking orders.  The Supreme Court disagreed and has unanimously allowed the ISPs’ appeal. Lord Sumption gave the lead judgment, with which the other judges agreed.

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