Delay in seeking interim injunctive relief proves fatal
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In Blinxx UK Ltd v Blinkbox Entertainment Ltd, the Chancery Division of the High Court of England and Wales has rejected Blinxx UK Ltd's application for interim injunctive relief.
Blinxx has run the website 'blinkx.com', a video search engine, since 2004. It sought interim injunctive relief to stop Blinkbox Entertainment Ltd from using the word 'blinkbox' in the name of its website 'blinkbox.com', from which the company offered its customers, among other things, the ability to choose, customize and share video and television clips.
After Blinxx discovered that Blinkbox had applied to register various Community trademarks which included the word 'blink', Blinxx wrote to Blinkbox, complaining that the latter was clearly attempting to utilize Blinxx's reputation, which was to Blinxx's disadvantage. However, Blinxx did not bring proceedings against Blinkbox until some years after this initial correspondence.
In the action before the High Court, Blinxx sought interim injunctive relief, alleging trademark infringement and passing off. It maintained that it had been appropriate for it to delay the commencement of the proceedings until such time as actual confusion arose in the market between the two services.
The court refused Blinxx's application. In its view, Blinxx had known since at least 2008 that Blinkbox was providing an on-demand media service through its website, but had taken no steps to issue proceedings despite that knowledge. The possibility that the two services might be confused should have been apparent in light of what Blinxx knew.
Further, the court held that it was wholly unreasonable and completely unjustified for Blinxx to wait to issue proceedings. In commercial terms, if Blinxx won and got an injunction, Blinkbox would have to stop using its name and would immediately face the loss of advertising revenue, potential breaches of licensing agreements and the cost of a re-branding exercise - all of which might prove unnecessary if it were to be successful in the substantive action. On the other hand, Blinxx would suffer only some possibility of harm to its existing business if its application was refused. Consequently, there would be an element of finality to the proceedings if the interim injunction were granted.
Finally, the court stated that, if Blinxx had acted promptly, the balance of convenience might have favoured the grant of an injunction.
The decision is a reminder that a delay in seeking interim injunctive relief is apt to have fatal consequences.
Jeremy Phillips, IP consultant to Olswang LLP, London
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