Before the Christmas madness got too mad, Senior Associate from Burness Paull, Neeraj Thomas tells us about how their contentious IP team held a round table discussion with some English based clients and contacts who regularly seek to enforce their IP rights in the Scottish courts.
We invited representatives from Sky, the FA Premier League, Phonographic Performance Limited (“PPL”), PRS For Music Limited (“PRS”) and the newly created joint venture formed between PPL and PRS to join us at Scotland House in London to share their experiences of litigating in Scotland, what the Scottish Courts do well and where they could perhaps improve upon services offered.
As a Scottish litigator, I was pleased to learn that almost all attendees had a genuinely positive experience of enforcing their IP rights in Scotland. It was generally considered that the IP Court in the Court of Session (“IP Court”) compared very favourably with its English equivalents, the IP Enterprise Court (“IPEC”) and the English High Court.
Some of the main positives to come out of the discussion in favour of using the IP Court were:
Whilst the above are no doubt real positives that should hopefully promote the IP Court and Scotland generally as rights-holder friendly forum, there was one issue where the Scottish courts did not compare favourably to those in England.
There have been multiple instances where some rights holders have had to pursue breach of interdict actions where for example, infringers have continued to breach IP rights in contravention of a court order. Such cases are serious and can lead to findings of contempt of court which can ultimately lead to a period of imprisonment.
Our experience in these cases is that the severity of sanctions for breach of interdicts issued by the Scottish courts is generally much lower than those sanctions issued by the English courts. Comparably speaking the Scottish courts seem inclined to issue low level fines (£500 – £1000) whereas the English counterpart courts seem prepared to issue much higher fines (in some cases £15,000) regularly combined with the additional deterrent of a suspended custodial sentence.
Overall however, it was clear that that one issue should not detract from the almost overwhelmingly positive feedback for the Scottish court system and procedures. To have the endorsement of significant and prominent rights holders who are regular users of the IP Court is hugely encouraging to any Scottish IP litigator.
Given the difficulty with raising private criminal prosecutions in Scotland and the ease with which quick and cost-efficient results can be achieved in the IP Court, we hope other rights holders who may have resisted from seeking to enforce their rights in Scotland, consider doing so in the future.
Please do get in touch if you think the IP Court could be of benefit to you or your clients.
NEERAJ THOMAS, SENIOR ASSOCIATE