Court grants Anton Piller order for copyright infringement restraining seizure of video cassettes.

[*313]1985 Jan. 7

ARTEMIS, S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Angeliki (Gela) philopimenos and Another,

Plaintiffs,

v.

Paniccos Solomonides and Another,

Defendants.

(Action No. 8290/84).

Injunctions

- Interlocutory injunction - The Courts of Justice Law. 1960 (Law 14/1960), s. 32(1) - The prerequisites thereunder for the issuance of an interlocutory injunction.

Injunctions

- Interlocutory injunction - Action for damages and an injunction for infringement of copyright - Anton Filler Order - The prerequisites for granting an application for. are: (a) Extremely strong prima facie case, (b) the damage to the plaintiff must be very serious, (c) clear evidence that the defendant has in his possession incriminating documents or things that there is a real possibility that they may be destroyed before any order is made - Ambit and object of the said order - The manner of its execution - The rights of the defendant.

Chr. Christophides for L. Papaphilippou, for Applicants-Plaintiffs.

RULING

The following ruling was delivered by:-

ARTEMIS, S.D.J.:- The plaintiffs’ claim in this action is for damages for infringement of copyright in respect of video cassettes and for an order restraining the defendants from reproducing, renting, selling, etc. such infringing video cassettes. By this application they also apply ex parte for what has become to be known as an [*314] “Anton Piller Order”. The application is mainly based on s. 32(1) of Law 14/60 and on the cases of Anton Piller KG v. Manufacturing Processes Ltd. and Others (1976) 1 ALL E.R. 779 and EMI Ltd. and Others v. Pandit (1975) 1 ALL E.R. 418.

In a lengthy affidavit it appears that the owner of the copyright in respect of a number of video films contained in a list attached to the affidavit, is plaintiff 1, who, by agreement, has given the rights - of exploitation of such films to plaintiff 2 in London. It is alleged that in some way or other the defendants have obtained a number of these films, have reproduced them and use them in their video club in Limassol for sale or renting.

The order sought is to restrain the defendants from parting with possession, or destroying, or altering the infringing video cassettes in their possession and from exploiting them by sale, renting or otherwise and further for an order requiring them to allow the plaintiffs and their laywers to enter their premises in Limassol and inspect and take possession of the infringing video cassettes and allow them to copy and take possession of all invoices and other documents connected with the sale, renting, etc. of the video cassettes.[*315]

The general principles for interim injunctions are well known and there is a number of authorities dealing with the requirements of s.32(1) of Law 14/60 which must be satisfied before an order can be granted. I have had the opportunity to deal repeatedly and extensively with such principles in the past and suffice it here to state that what the law in. Cyprus is, has been defined in the case of Acropol Shipping Co. Ltd. and Others v. Petros Rossis (1976) 1 C.L.R. 38 and in the case of Odysseos v. Pieris Estates & Others (1982) 1 C.L.R. 557, where the requirements for the satisfaction of the prerequisites contained in s.32(1) were analysed.

In the Anton Piller case (supra), the High Court formulated an extremely useful order to facilitate a plaintiff to thwart unfair competition by dishonest trading in the passing off of goods or in the infringement, pirating, etc. of copyright material. As there are practical difficulties hindering the detection and exposure of these dishonest traders as, if they have any illicit material in their possession, the court has no power to issue a search warrant and it is, therefore, easy for them after the service of the writ to have advance notice of a prospective order, thus having ample opportunity to dispose of the offending items, it was thought fit that an order should be formulated which could be granted ex parte before service of the writ of summons. (See Island Records Ltd. v. Corkindale

(1978) FSR 505). [*316]

The effect of the order is to require a defendant to permit the plaintiff access to the defendant’s premises and to disclose all relevant material in his possession so that the plaintiff can inspect it. Even though it has been stated that such an order is tantamount to a search warrant, in law the effect of the order is to put pressure on a defendant to permit entry and inspection - the plaintiff must always get the defendant’s permission to enter. Of course, if such permission is not given, the defendant may be faced with contempt proceedings.

The prerequisites for granting such an order are the following: (a) there must be an extremely strong prima facie case, (b) the damage, potential or actual, must be very serious for the plaintiff, and, (c) there must be clear evidence that the defendants have in their possession incriminating documents or things that there is a real possibility that they may destroy before any order can be made. Furthermore, in order to safeguard the rights of a defendant, the execution of the order must be made in the presence of the plaintiff’s laywer, or some responsible person aware of the extent and limitation of the legal remedy and

the need to protect the defendant. (See Universal City Studios Inc. v. Mukhtar & Sons Ltd. (1976) FSR 252). In addition the

defendant must be free to consult his lawyer and to apply for a discharge of the order if he wishes. [*317] Thus, such an application may have the effect of suspending the order even though it can be said that the party against whom it is made will be in continuing contempt of the order and, if he fails to succeed, that would be to his disadvantage. Finally, the plaintiff must give the normal undertakings as to damages. In the Anton Piller case (supra), an undertaking was given for £10,000 in the form of a bond.

I have carefully considered the evidence before me and I am satisfied at this stage that the requirements of s.3 2 (I) are satisfied. Furthermore, I find that a strong prima facie case has been shown and the likelihood of serious damage to the plaintiffs is very probable. The affidavit of the applicants is supported by several documents which lead to this conclusion including invoices from which it appears that the allegedly infringing copies of video cassettes have been the subject of trading by the defendants.

In the result, Orders are made in the following terms:

Until further order,

(a) The defendants are restrained from parting with possession, power, custody or control of any video cassettes of the films described in the first schedule attached to the application. [*318]

(b) The defendants are restrained from in any way defacing, destroying, altering or erasing, or removing from the premises at No. 9 Kapodistrias Street, or elsewhere in Limassol, any of the said video cassettes.

(c)The defendants are restrained from selling, renting, trading in, exhibiting for sale, renting or distributing any of the said video cassettes which, to the knowledge of the defendants, constitute an infringement of the plaintiffs’ copyright.

It is further ordered that the defendants, and each of them, do permit such persons, not being more than two in number, as may be duly authorised by the plaintiffs, and at least one member and employees not exceeding four of the plaintiffs’ lawyers, to enter forthwith the premises mentioned above and any other premises under the control of the defendants at any hour between eight o’clock in the forenoon and seven o’clock in the evening for the purpose of inspecting the said video cassettes which form an infringement of the copyright of the plaintiffs, and photocopying or copying or taking possession of all invoices and other documents which are related to the purchase, sale, renting, distribution and advertisement of the above.

Finally, the defendants are ordered to allow the removal into the plaintiffs’ lawyers’ custody [*319] any of the above-mentioned articles and documents which relate to the said video cassettes. Any documents taken for copying to be returned within 7 days. Plaintiffs to give security in the sum of £5,000.

The defendants and each of them are to be at liberty to move this Court to vary or discharge this Order.

The costs of the application are reserved.

Order as above.