Intellectual property

Publicity orders should normally only be made, in the case of a successful intellectual property owner, where they served one of the two purposes set out in Art 27 of the Directive, and in the case of a successful non-infringer, where there was a real need to dispel commercial uncertainty in the marketplace. The Directive did not provide for publicity orders where a party had successfully defended an unjustified claim of infringement or had obtained a declaration of non-infringement. However, there was no doubt that the court had jurisdiction to grant a publicity order in favour of a non-infringer who had been granted a declaration of non-infringement. A declaration was a discretionary, equitable, remedy. Whether or not it was appropriate to grant it depended on all the circumstances of the case, and the test was whether there was the real need to dispel commercial uncertainty.