Case No. IP-2021-000111

121.The Defendants seek by way of counterclaim a declaration of non-infringement and a publicity order. 122.The Claimant submits that both are unnecessary given the fact that the case has already received so much media attention and the outcome will no doubt be reported by the media in any event. I put it to Ms Watkinson for the Claimant that this media attention might be a reason in favour of granting the declaration sought, rather than against it. She submits that the judgment itself would be enough to clear the water, and the Defendants could choose to publicise the judgment if it wished to do so.123.There is no dispute that the court has the power to grant a declaration of non-infringement, taking into account justice to the Claimant, justice to the Defendants, whether it would serve a useful purpose and whether there are any special reasons why or why not the Court should grant the declaration (per Neuberger J at p.11 of Financial Services Authority v Rourke124.Similarly, there is no dispute that the Court can make a publicity order against a party who unsuccessfully alleges infringement, where there is a real need to dispel commercial uncertainty, per Jacob LJ in Samsung v Apple [2012] EWCA Civ 1339, at [70] – [74]. This is a discretionary, equitable remedy and the discretion must as always, be exercised judicially, taking into account all the relevant circumstances of the case. I accept the Defendants’ submission that any commercial uncertainty caused by the bringing of this claim for copyright infringement against them has been magnified by the publicity campaign carried out by the Claimant over the past 3.5 years, including around the trial itself. Ms Watkinson submits that she was entitled to publicise her claim and I do not disagree with that. The quid pro quo is that, her claims having been rejected by the Court, the Court will require her to publicise the judgment and order made against her in order to endeavour to redress the balance. 125.After circulating this judgment in draft, the parties agreed the terms of such a publicity order by agreeing the terms and format of a notice to be published for at least six months on the home page of the Claimant’s website, on her Facebook page and Twitter account. That notice includes a link to this judgment. I am grateful to them for doing so.