Claim No: IP-2022-000053 - [2025] EWHC 1827 (IPEC)

Mr Patch set out his position before me in what I describe respectfully as layperson’s terms. He had ordered the Products from BSH not expecting them to infringe third party rights. He did no intellectual property clearance – and does not in relation to wine he imports – he expects the manufacturer to deal with that. He had never heard of Ms Martin or her Work prior to her contacting him. When Ms Martin complained to him, he handed the matter over to BSH and expected them to deal with it. BSH said they would. There is in the evidence before me an email from BSH to Mr Patch which says in terms “[i]n the event that a British legal injunction / shows up against you (we do not foresee this), as Leonardo said, we will protect you”. In the end, BSH did not protect Mr Patch or GM Drinks, and Mr Patch expressed his view that they had left him to be “thrown under a bus” by not turning up to defend the matter and leaving him to do so. Mr Patch did not think that he or GM Drinks infringed Ms Martin’s rights – it was all, he said, a matter for the winery. Mr Patch gave evidence that GM Drinks did not order any more of the First Label Products once Ms Martin had been in touch with him, but that stocks of the First Label Products continued to leave Argentina, be imported into the United Kingdom, and passed on to customers of GM Drinks.

Whilst I have some sympathy for Mr Patch’s predicament, GM Drinks, which he owns and runs, imported the Products into the United Kingdom, offered them for sale, and sold them. Whilst various aspects of copyright infringement have a requirement that the alleged infringer knew or ought to have known that the allegedly infringing articles infringed, others do not – they are strict liability statutory torts. Thus, GM Drinks can be liable for some types of copyright infringement without knowing that they infringed. Similarly, the tort of passing off does not require that the defendant knew that s/he was passing off – similarly, it is a strict liability tort. Thus, what GM Drinks and Mr Patch knew is irrelevant to the assessment of liability in relation to some aspects of the Claimants’ case.