Win (for now) for app developer against Google

Unlockd Ltd and others  v Google Ireland Limited and others (unreported, Roth J, Chancery Division 9 May 2018) – transcribed judgment awaited

Unlockd, an app developer, sought an interim injunction to prevent Google withdrawing its services. Roth J found that the balance of convenience was in the applicants’ favour. Their claim raised a serious issue to be tried and any action by Google to withdraw their platform would severely damage the applicants’ business. An interim injunction was granted.

Unlockd had developed a smartphone app which delivered advertisements to Android and other smartphone users when they unlocked their devices. The app was available for download on Google’s distribution service Google Play Store. Unlockd had entered into a partnership with Tesco’s mobile phone provider (Tesco Mobile). Tesco’s app incorporated the app.

Google contended that the way in which the applicants’ advertising service operated breached a number of their advertising policies. They informed Unlockd that they would withdraw their advertising service (Admob) and remove the Unlockd app from Play Store.

The applicants issued proceedings claiming abuse of a dominant position and applied for an interim injunction, arguing that removal of Google’s services would almost certainly be fatal to their relationship with Tesco Mobile, and that it would not be possible to replace that major part of their revenue stream due to the respondents’ strong position in respect of advertising.

Google argued that they should not have to have an app on their platform which was in clear violation of their published policy on which advertisers relied.

The full trial is due to be heard in July or September of this year.

Roth J granted the injunction. It was one thing to impede Unlockd’s expansion with new clients while litigation was ongoing, but another to disrupt a relationship which had existed over two years. If their app was removed from Google Play Store, the Tesco Mobile app that it incorporated would disappear as well, and that would potentially damage the relationship between the applicants and Tesco Mobile. Such commercial relationships, once damaged, are not easy to restore. In other words, if the injunction were to be refused, damages would not be an adequate remedy for the applicants.

Relying on the balance of convenience test as applied in National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16, Roth J concluded that the granting of the injunction was less likely to cause prejudice if it turned out at trial that it should not have been granted.

Watch carefully the trial of this claim later in the year. It is not the first case where Google’s market position is being challenged because it seeks to impose terms which others regard as abusive of that position.

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