Current advances in technology are making it increasingly difficult to distinguish between the physical and digital, making the task of enforcing IPR harder. One prominent issue is the circumstances by which the tech brands can be held liable for any infringing apps available on their app stores, where third-party independent app developers have created technology that can be used with the various branded technology.
The recent case of Montres Breguet SA & Ors v Samsung Electronics Co. Ltd  EWHC 1127 (Ch) (20 May 2022) (bailii.org) may help shed some light on this, as well offering an insight into the world of protecting IPRs across multiple platforms.
The claim made by Swatch relates to digital watch faces (watch face applications, or “apps”) that could be downloaded to Samsung’s smartwatches from the Samsung Galaxy App store (the “SGA store”). This case is of a particular importance because it now clarifies (if there was any doubt) that various Appstore owners, in this case Samsung, can be responsible for the apps available within their stores. Since the development of the modern internet commerce, a series of “safe harbour” provisions have been introduced, to help establish the liability of intermediary service providers or in this case, tech branded technology owners. A service provider can benefit from the exemptions for ‘mere conduit’ and for ‘caching’ when they are in no way involved with the information transmitted. This requires among other things that they do not modify the information that they transmit and are simply giving access to a communication network over which information made available by third parties is transmitted or temporarily stored. This rationale is to make where the service provider has neither knowledge of nor control over the information which is transmitted or stored.
A vast number of the Apps available on the SGA store are created by third-party independent app developers and as such, are technically not affiliated with Samsung. However, because Samsung had the ultimate say in whether the apps were accepted for sale on the SGA store, and had a clear commercial interest in the watch face apps in the SGA store, their availability, presentation and use by consumers, they were held liable for the IPR infringement.