EWHC 1970 (IPEC) is an 18 June 2014 ruling of Judge Hacon in the Intellectual Property Enterprise Court, England and Wales. Orvec traded in textile products which it sold to airlines; Linfoots was an advertising agency which provided advertising and marketing services to Orvec between 2002 and 2011 which included the making of photographs of products which Orvec then offered to the airlines.
Both parties agreed that Linfoots retained ownership of copyright in its photographs, if for no other reason than that there was an express term to that effect in Linfoots' standard terms and conditions, which governed their relationship, which ended in 2011.
The products shown in Linfoots' photographs were sometimes made by Orvec but in many instances were supplied to it by Intex, a business based in Hong Kong. In 2012, after the business relationship between Orvec and Intex ended, Intex started to compete with Orvec in the supply of textile products to airlines. Then, in September 2012, Intex asked Linfoots to create and supply photographs for use in its advertising. Linfoots supplied images showing the sort of products which Intex offered to airlines, some or all of which appeared on Intex's website -- among which were images to which Orvec took exception.
Judge Hacon dismissed both limbs of Orvec's action.
* As to breach of contract, an implied term setting out the licence granted by Linfoots to Orvec was likely to be simple in form: the more complex the putative term, the less likely it was that the reasonable person would take it to be an implied part of the contract.
* If more than a non-exclusive perpetual licence was to be implied, at most it would be was exclusive only where Orvec's trade mark appeared in the photograph. This however would require consideration by the hypothetical reasonable person of a term with a more complex formulation, which meant that the term was less likely to have been implied. In any event, it had not been established that any photographs showing Orvec's trade mark were supplied by Linfoots to Intex.
The judge's approach here seems entirely appropriate. This blogger has long felt that "there must be an implied term" is the last resort of a claimant who doesn't have any stronger basis for making his case, and this is an argument which appears to fail in the vast majority of IP cases where it is pressed.