English law, not the law of each country where copyright is claimed, will decide what effect earlier Georgian court judgments have on Aviator LLC’s copyright case against crash-game developer Spribe, after the UK Court of Appeal overturned a May High Court ruling. The unanimous Oct. 2 decision is a procedural win for Aviator, though the court made no finding on whether Spribe infringed Aviator’s copyright, or on whether the Georgian judgments actually stop Spribe from contesting ownership and copying in the UK proceedings.
Michael Tappin KC, sitting as a Deputy High Court Judge, had ruled in May that whether the Georgian decisions prevented issues from being litigated again should be decided under the law governing each underlying copyright claim. Because the dispute includes claims covering the UK and numerous other countries, the High Court found that the Rome II Regulation required the relevant foreign law to be applied to each of the overseas claims, and Aviator appealed.
Lord Justice Arnold, sitting with Lady Justice King and Lord Justice Miles, came down the other way. Res judicata and issue estoppel, the principles that govern whether a matter already decided by another court can be reopened, fall outside Rome II according to the Court of Appeal, which means English law applies to them as the law of the court hearing the case. That was the approach Aviator had argued for, while Spribe had maintained that the law of each country where copyright protection is claimed should govern.
At the heart of the wider case are competing claims to the branding on the Aviator crash game. Aviator says it owns the copyright in an aircraft-themed image and aeroplane device used for a crash game launched in Georgia in January 2019, a game whose software Spribe developed. Artwork Spribe later used was copied from that image, Aviator alleges, and Spribe’s distribution of the game, including in the UK from 2020, infringed its copyright. Spribe denies that Aviator owns the copyright and says its artwork was designed independently.
Aviator’s case leans on earlier litigation in Georgia, where it successfully challenged a Georgian trademark registered by Spribe on the grounds that using it would infringe Aviator’s copyright in the image and aeroplane device. Spribe appealed through the Georgian courts all the way to the Supreme Court of Georgia and lost. Aviator argues those rulings stop Spribe from relitigating certain questions about copyright subsistence, ownership, and copying in the English case, and Spribe disputes that the Georgian judgments have any such effect.
Assessing Aviator’s issue-estoppel argument under English law, rather than potentially applying different rules for every country its copyright claims cover, could shape the rest of the litigation considerably. Aviator says the Georgian judgments are relevant not just to its UK claim but to infringement claims concerning 181 other countries.
Whether the Georgian decisions actually bind the English court is still undecided after the Oct. 2 judgment. So are the questions of whether Aviator owns the disputed copyright, whether Spribe copied the artwork, and whether either company has infringed the other’s intellectual property, all of which remain part of the continuing High Court proceedings. The Court of Appeal ruled only on which legal system governs Aviator’s attempt to rely on the Georgian judgments.
Spribe is pursuing counterclaims of its own in the UK for trademark infringement, passing off, and copyright infringement, connected to Aviator’s planned launch of another Aviator-branded crash game. Spribe has already won an interim injunction blocking that launch in the UK pending trial, while Aviator is trying to invalidate Spribe’s registered UK trademarks on copyright and bad-faith grounds. The Court of Appeal judgment records those claims without deciding them.
England is only one front in a wider international fight between the two companies over the Aviator brand and its related intellectual property. Aviator now has the legal framework it wanted for using its Georgian wins in the English case, but whether those judgments settle any of the disputed copyright questions will be decided as the main case moves forward.