Sony’s PlayStation Portable is revelling in its status as this year’s must-have gadget. Gamers everywhere lust after its sleek lines and smooth curves — but beneath the hype, the PSP has suddenly found itself embroiled in a darker story.
The European arm of the Japanese electronics giant, Sony Computer Entertainment Europe, is trying to get a high court injunction against a number of British companies to stop them importing the PSP from outside Europe. The console went on sale in Japan last December, and buying imported units has become de rigueur among hardcore gamers who felt unable to wait until the machine’s official European release, slated for September 1.
Sony claims it has not given anyone permission to import the consoles, and that those who do so are infringing its trademarks. The importers, however, paint this as a David and Goliath story that underlines the double standards within the industry. They argue that major high street retailers are carrying PSP accessories, and that Sony has — until now — implicitly supported the import market. They even claim that Sony’s own staff have been buying PSPs from grey market retailers.
Under the letter of the law, grey importers must prove they have consent from Sony. ”Consent can be inferred,” says Brian Miller, a partner with law firm Davenport Lyons, ”but it is important to note that consent will not be implied where the manufacturer has simply remained silent on the issue.”
Alex Chapman, a partner with law firm Briffa, which specialises in the games industry, says inferred consent will be tough to prove. ”The legal question is whether Sony has given implied consent to these PSPs being put on the market in the European Union,” he says.
Sony’s public statement says it ”will continue to be vigilant and, where necessary, take appropriate action against those unlawfully importing PSPs into Europe”. The company refused to make further comment.
Importers, however, believe they are being unfairly treated by a firm that has not previously worried about the grey market. Some retailers, such as gadget site Firebox, have stopped selling imported PSPs — but others are vowing to take the fight to court.
”The industry has its fingerprints all over the PSP,” says Dan Morelle, managing director of import firm ElectricBirdLand, one of the companies contesting the action. ”We’re not selling counterfeit products. All we’re doing is the one thing Sony hasn’t done: selling PSP to European buyers.”
Sony is seeking an injunction against those importers who have not stopped selling PSPs, and next Monday will be hoping for a decision in the high court.
Taking on a corporate behemoth such as Sony is a costly operation.”As a small family-run business, I can’t afford the expensive lawyers that Sony has,” says Morelle, who will be representing himself.
So-called ”grey” and ”parallel” imports have long been standard practice in the games industry, allowing hardcore gamers to get hold of machines and titles early. This is especially important in Europe, where release dates almost invariably lag behind Japan and the US.
The results of this action remain to be seen, but critics certainly have a case for arguing that Sony has brought the difficult situation on itself. The European launch date for PSP has been hugely delayed, and by the time the first official machines hit British stores on September 1, customers will have experienced nine months of the Sony hype machine in full swing. British consumers are used to being treated like poor cousins, but even the most patient fan might find it hard to stretch their excitement over such a long period.
The British gaming industry provides many of the world’s most important creative forces, and punters are crying out for PSPs. Whatever the arguments — and whatever the outcome — Sony could end up paying a high price for taking its time.
Law of the land
The practice of importing games consoles and titles has been common in the videogames industry for many years. There are two sets of laws that apply to the import business, depending on the source of the goods.
If goods are bought from another country inside the EU, the practice is known as parallel importing. If, for example, I discovered I could buy a game cheaply in Madrid and then re-sell it in Manchester, I would be parallel importing. Although many manufacturers do not like it, this practice is legal as long as certain conditions have been met.
The item must be repackaged to show who the importer is (as well as the name of the original manufacturer), and this must happen without damaging the condition of the goods.
Any additional items — such as power adapters — must be clearly presented as the responsibility of the importer, not the original manufacturer. Finally, there must be notice given to the manufacturer that the repackaged products are going on sale.
If I decide to bring in goods from outside Europe, this is known as grey importing. In terms of the games industry, this usually means the goods have been bought in Japan or America, and then brought into the UK.
The rules in this case are weighted towards manufacturers, as long as they own the trademark rights for their product within Europe.
Unless consent has been given by the manufacturer for others to import the goods, then it can be deemed illegal. There may be cases in which consent can be inferred, but it is up to the importer to prove that consent has been given.
The issue of consent is at the centre of the legal battle: some importers claim that Sony implied consent, which the company denies. – Guardian Unlimited Â