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Broadly speaking a licence gives permission to do something that would otherwise be unlawful. Licences do not need to be explicitly agreed (they can be implied) and can be revocable. However be warned, if an implied licence is not revoked, as in this instance, it can result in terms which the parties did not intend to be within the scope of the licence. It was the existence of such an implied licence which led the Intellectual Property Enterprise Court (IPEC) to dismiss a claim by Helme & Others for copyright infringement and passing off.
Claims of copyright infringement can often result from a business relationship that has gone sour.
Background
Helme & Others v Maher and Another [2015] EWHC 3151 (IPEC)
The dispute
Mrs Helme sued the Defendants for copyright infringement in relation to the advertising of 'Hidden Gem' using the trade name, logo and a photograph. That Mrs Helme owned the copyright was never in dispute. The key questions (which the Defendants argued in the affirmative) was:
What is notable, is that when discussions were first entered into Mrs Helme and the Defendants enjoyed a relationship of 'friendship and trust'. There was also clear evidence that Mrs Helme enthusiastically endorsed the work of the Defendants to promote the joint enterprise. Considering this and in answer to the first question, Judge Hacon found that an implied licence for 'any purpose which they might reasonably consider to be for the advancement of the joint enterprise', had been created by the conduct of the parties. And although the relationship between the parties changed over time, this did not alter the licence granted.
In answer to the second question, Judge Hacon also found that while any advertisements before the letter of action were under the original implied licence, those after 9 April 2010, (when Timscris were advertising) were also within the scope of the original licence through the granting of a sublicence to Timscris at the meeting in March 2009, which was effective as the original implied licence was so broad. When the letter before action was sent, there was nothing within it to suggest that the Defendants should have also terminated the sublicence. This meant that the work done to promote the joint enterprise aftertheinitiation of legal proceedings, but under the sub licence, was permissible and did not infringe copyright.
Conclusion
While the finding that there was no breach of copyright is not a particularly ground-breaking revelation, this case does re-affirm that implied licences are effective, and successfully provide an innocent party with protection. It was believed that the real complaint here was that Mrs Helme had misplaced her trust, but this does not make what the Defendants did unlawful.
What can be learnt from this judgement?
If you need legal advice around this subject, please contact our franchise lawyers our expert IP law team or please contact Martin Cuell, partner on +44 (0)117 915 4933 or email [email protected] or Hannah Batten, associate on +44 (0)117 915 4975 or email [email protected]
