A "newcomer" type of injunction

A recent decision by the Supreme Court in relation to "newcomer inunctions" will be of particular interest to IP rights holders. The key differentiator of a newcomer injunction is that it applies to persons who are not just unknown but, importantly, have not breached (or even threatened to breach) the act which is prohibited by the order at the time of it is granted (i.e. it may apply to a "newcomer" who starts to breach the injunction after the date on which it is granted). Several have been granted by lower courts in recent years, and now the Supreme Court has held that courts in England and Wales are entitled to grant them, provided that certain safeguards are respected.

The judgment summarises the "distinguishing features" of a so-called "newcomer injunction" at paragraph 143 which, cumulatively, left the Supreme Court “in no doubt that the injunction against newcomers is a wholly new type of injunction with no very closely related ancestor.” They are an evolution of equitable remedies worth noting.

The issue at stake before the Supreme Court was entirely unrelated to IP rights (it concerned a series of newcomer injunctions obtained by local authorities to prevent travellers from camping on local authority land), but the judgment was unequivocal that the issues raised in that context had a wider significance, including in relation to the enforcement of IP rights.

Injunctions against "unknown persons" are nothing new in the IP context; rights holders have successfully obtained injunctions against persons unknown in several different contexts, and they can act as an effective means of tackling IP infringement in particular in relation to counterfeit goods. But rights holders will welcome the Supreme Court’s confirmation that courts are entitled to grant them against newcomers specifically.

Newcomer injunctions are likely to be a useful tool for rights holders and, in the right context, provide a potentially efficient and cost effective means of seeking relief against unknown defendants, even if those acts of infringement are not yet taking place.