Ed Sheeran wins copyright infringement lawsuit and recent case law of the General Court.

Ed Sheeran wins copyright lawsuit

Ed Sheeran has won the copyright infringement case over his song "Thinking out Loud" (we blogged about this case a week ago).

After 3 hours of deliberation, the jury found that Ed Sheeran had not infringed the copyright of Martin Gaye's song 'Let's Get It On'.

Sheeran said he was very pleased with the jury's verdict and felt the claim was completely without merit.

During the trial, the plaintiffs’ attorney tried to argue that there was indeed copyright infringement in the sense that Sheeran had intentionally copied parts of the famous song. But Sheeran's defence said he created the song independently.

When it came to giving evidence, Ed Sheeran had to take the stand, sometimes singing, sometimes playing guitar. During the trial, Sheeran did a guitar mash-up between his song and Gaye's to show that the 4-chord progression of his song "Thinking Out Loud" was very common.

During closing arguments, Sheeran's lawyer, Ilene Farias, said the trial should never have happened and that her client had been unfairly accused of copying.

In the end, the case ended well for the British superstar, although it is certainly not the last copyright infringement case he will face.

The Court of Justice takes position on jurisdiction in a trade mark infringement case

In case 104/22

Lännen, a company established in Finland and trading under the EU trade mark WATERMASTER, brought an infringement action before the Finnish Commercial Court against two companies (Berky and Senwatec) belonging to the same group of companies established in Germany. All companies sell similar products (amphibious dredgers).

The acts that Lännen complained about consisted of:

• the publication of images by Berky, on Flickr.com, under the WATERMASTER meta tag
• the use of the WATERMASTER word in Google Ads titles on Google.fi and linking to Senwatec’s website.

In other words, when searching for the term "Watermaster", the search engines redirected the user to Berky’s images on Flickr.com (showing their competing products). And Google.fi produced ads naming WATERMASTER but redirecting to Senwatec’s products.

Sued in front of Finnish courts, the defendants, Berky and Senwatec, challenged the jurisdiction of these courts, arguing that they did not offer their products in Finland and that the facts described by the plaintiff were not sufficient to show that their activities were directed to Finland. Indeed, according to article 125 of the EUTM Regulations, the holder of an EU trade mark can sue the alleged infringers of this trade mark in several locations – one of them being the place where the infringement has been committed. Therefore, Lännen decided to sue in Finland, considering that the activities made online targeted the Finnish market, while both defendants disagreed (as another court’s jurisdiction, eg. Germany, would be more beneficial to them).

The Finnish court referred three questions to the General Court for a preliminary ruling.

The Finnish court asked in particular whether elements such as the nature of the goods, the extent of the marketing area or the national domain under which the search engine operates should be taken into account at the time of assessing jurisdiction. The General Court replied that it would be excessive for the national court to have to go into these complex factual and legal elements when assessing its own jurisdiction – that rather, a reasonable presumption (backed by evidence) that the court is competent (ie., elements of proof that the infringement indeed occurred in Finland, in this case) is enough to proceed.

Among these elements, the General Court stated that the fact that a company pays the operator of a search engine with a national domain related to a specific member state (different than the one where it is established) constitutes a sufficient link – it helps establish the presumption that marketing activities (and thus the possibly infringing activities) are going on in that country. This is not the case for a generic domain which is not intended for users in a particular country.

The Court concluded that when the defendant uses the sign for paid positioning on the website of a search engine using the national domain name of a Member State, acts are deemed to have been committed in that particular State. On the other hand, that is not the case where the third party has placed images of its goods on a website operating under a generic domain name, using meta tags which use the trade mark in question as a keyword.

In other words: paying for Google.fi ads would be enough proof that Senwatec is using the WATERMASTER brand in Finland (hence potentially infringing it in Finland, hence Finnish courts can be competent). The same is not true of the use of metatags on a website with a .com domain such as Flickr.com since this does not indicate any link with a specific country (hence with a specific place of infringement).