Swatch won its claim that 30 watch face apps infringed 23 of its trademarks.
Third parties have developed watch face apps and Samsung has made them available on its Galaxy App Store. These apps have been downloaded 160,000 times in the UK and EU. The e-commerce directive offers a defense to content hosts. But this applies to acts of a “mere technical, automatic and passive nature”. The court concluded that Samsung was closely involved in and controlled the entire process of making the apps available. As such, Samsung could not demonstrate that it lacked knowledge or control over the data. The court ruled that Samsung was primarily responsible. Having reached this conclusion, the court did not consider whether app developers were the primary offenders.
lessons to learn
- Make sure you have appropriate indemnities in your vendor or developer contracts
- Check your insurance
- If you commission a project and are closely involved in it, you may be liable if it infringes the rights of third parties
- If you approve infringing content, it may void your developer’s compensation
PS the image is a generic image from Pixabay. The actual images are appended to the judgment.