Stuff

Facebook are allowing users to chose user names for the first time i.e. the users URL will be http://www.facebook.com/ipfreely for example.

Which makes IP Freely think of........trade mark infringement! It's one of my favourite topics and one that Facebook have already prepared for with a pre-registration process allowing rights holders to list their trade marks and bar others from registering them as names. The catch? You have to already be a member to do so. Out-law have written more about it here.

Out-law also report that "Consumers think limitless domains will muddy internet waters", why people bother making such surveys I don't know.

************UPDATE*************

IP Freely is having considerable trouble in creating new posts at the moment hence the lack of recent posts (although I have also been very busy with other projects), as soon as Blogger lets me post you will hear from me!

Defamation at a glance

This article looks at the law of defamation, it's defences and possible remedies.

A defamatory statement is one which tends to lower the claimant in the estimation of right-thinking members of society generally (Sim v Stretch [1936] 2 ALL ER 1237 and can be split into two areas: libel (this is recorded defamatory material) and slander (spoken).

There are three elements which must be shown in order to bring a defamation claim:

- A defamatory statement;
- That identifies the claimant (note: this does not have to be by name, in fact a member of a group of people could bring a claim should they be identifiable);
- Publication to a third party

If you have been defamed you must bring your claim within one year of the statement being made(section s4(a) Limitation Act 1980). The Court does have a degree of discretion in applying the limitation period however they are usually reluctant to divert from it. Recent case law (Times Newspapers v UK (2009) has provided that every time an online article is accessed a fresh publication is made, therefore where a defamatory statement is made online the limitation period is potentially endless.

A reputable publisher / newspaper will contact you with any "risky" stories they plan to run about you prior to publication (although in most cases this will be a couple of days maximum) in doing so they are attempting to bring themselves within the scope of the Reynolds defence i.e. "responsible journalism". Where a publisher / newspaper have done so or you have found out about the article some other way prior to publication then you can consider applying to the Court for an interlocutory injunction (i.e. preventing the story being published). Such applications are more often than not turned down, the basic rule is that if the defendant plans to raise a defence at the full hearing then the Judge will allow the story to run provided that the defence has a "realistic prospect of success".

There are a number of defences:
- Justification i.e. the story was true
- Fair Comment (provided "the unmistakeable badge of comment" exists)
- Absolute / Qualified Privilege for example statements made in the course of parliamentary debate etc
- Qualified Privilege at common law i.e. the 'Reynolds' "responsible journalism" defence
- Responsibility for publication, quite simply "it wasn't me guv")
- Offer to make amends under sections 2-4 of the Defamation Act 1996

Where a claim is successful likely remedies include injunctions from further publication of the material, damages (although not as much as you would think!) or the publication of an apology.

Michael Owen over the hill?

England and Newcastle footballer Michael Owen has succeeded in his defamation claim against the Daily Express.

The striker has had an injury plagued career which reached an all time low with the relegation of his club Newcastle United to the Coca-Cola Championship. In the article the Daily Express claimed that he was on the verge of retiring from football because no Premier League clubs wanted to sign him. According to his solicitor: "These incredulous allegations are entirely without foundation and were obviously extremely distressing, hurtful and damaging to the claimant." .

These claims were headed by the following: "Unwanted Toon striker at a cross roads, Finished at 29?" and "Owen ready for sad finale". Owen's solicitor claimed that the timing of the publication (just before an important game) aggravated the player's distress and that the allegations were not put to Owen before publication.

Express Newspapers has agreed to pay an undisclosed sum of damages and Owen's legal costs, they have accepted that the allegations were unfounded and apologised for the distress, embarrassment ad offence caused.

A spokesman for Owen said: "Michael is delighted to have won his case and to have set the record straight."

Black Sabbath in trade mark dispute

Metal favourites Black Sabbath are involved in an internal trade mark dispute.

Lead singer Ozzy Osbourne (famous for among other things biting the head off a bat whilst on stage) is reportedly suing the band's guitarist Tony Iommi over the rights to the bands name. Iommi registered 'Black Sabbath' as a trade mark in the US in 2000 and claims that when Osbourne left the band in the 1980's he relinquished any rights he had in the band's name.

According to a statement issued by Osbourne, he asked Iommi to "do the right thing".

"Tony, I am so sorry it's had to get to this point by me having to take this action against you,".

"We've all worked too hard and long in our careers to allow you to sell merchandise that features all our faces, old Black Sabbath album covers and band logos, and then you tell us that you own the copyright."

Osbourne reportedly want's the original band members to share Black Sabbath's name equally: "I hope that by me taking this first step that it will ultimately end up that way." however at present it seems he is seeking 50% ownership.

Interestingly enough this dispute bears remarkable similarities to the case of Peter Byford v (1) Graham Oliver (2) Steven Dawson (2003) which related to the metal band Saxon. In this case the line-up of the band had been constantly changing and on leaving the band in 1985 and 1995 respectively Oliver and Dawson registered the name as a trade mark. It was held that the band was a partnership at will and as such all rights in the name of the band were owned by the members jointly, where a member left the band and was replaced then the name and goodwill belonged to the successive partnerships.

If the claim was brought in the UK then applying the Saxon case (presuming there is no band agreement) it would seem likely that the trade mark will be deemed to belong to the current band line up, which incidentally is back to the original 1968 line-up.

Football clubs kick off together

A number of England's top football clubs have combined in order to win a ground-breaking domain name dispute at the World Intellectual Property Organisation (WIPO).

Fulham, Liverpool, Manchester United, Tottenham Hotspur and West Ham joined forces to make a claim under the Uniform Domain Name Dispute Resolution Policy. The WIPO panel stated that "little (if any) substantive consideration has previously been given by a UDRP panel concerning the circumstances in which it might be appropriate to permit a consolidated complaint involving multiple complainants and multiple domain names against a single domain name registrant". The panel considered an earlier ruling: "In the National Dial A Word case the panel held that the consolidation of multiple complaints in a single complaint should be permitted if the complainants:
(i) have a common grievance against the respondent; and
(ii) it would be equitable and procedurally efficient to permit the consolidation of complaints,"

It went on: "With regard to the first limb of the test, to establish a common grievance against the respondent the panel in the National Dial A Word case held that multiple complainants must:
(i) have a common legal interest in the trade mark rights on which the complaint is based; or
(ii) be the target of common conduct by the respondent which has clearly affected their individual legal interests in a similar fashion."

The clubs were complaining over various domain names that were linked to websites selling tickets to their football matches for example official-liverpool-tickets.com. This was considered to fall under the second option above i.e. the clubs were the target of common conduct by the respondent which has clearly affected their individual legal interests in a similar fashion.

"The [football clubs] have established that [Domains By Proxy] has engaged in common conduct which has affected their legal rights in a similar fashion. Indications of such common conduct on the part of the Respondent include:
(i) the fact that the Disputed Domain Names share readily identifiable commonalities. When each of the [football clubs'] trade marks are disregarded for the purposes of comparison, the Disputed Domain Names contain the identical generic terms 'official' and 'tickets';
(ii) the fact that the Disputed Domain Names have all apparently been registered on the same day points to a clear pattern of registration;
(iii) the fact that the Disputed Domain Names apparently all resolve to an identical web site selling unauthorised Premier League tickets points to a clear pattern of use of all the Disputed Domain Names for the same purpose,"

It should be pointed out the Nominet (the body handling disputes over .uk domains) explicitly allows multiple claimants. It seems a sensible step forward for WIPO as cyber squatters etc tend to direct very similar activities at a number of victims and by banding together these victims can make substantial savings as to legal costs.

For more details of domain disputes please see: http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/5147-Cyber-Squatting.htm

The King of Pop in contract breach?

The King of Pop looks like he's in a spot of bother.

IP Freely was one of many doubters of Michael Jackson's 50 date run of shows at the O2 (albeit my doubts were of a physical health nature rather than a legal one). Music Week has now reported that the shows are the subject of a legal wrangle.

All Good Entertainment Inc claims to have signed a deal with the King of Pop's manager Frank DeLeo stating that Michael would not play a show before July 2010 when he is contracted to perform with his sister Janet (and his brothers but I don't know who they are) in Texas.

As you will not have missed Michael's run of shows at the O2 start this July (that's '09 for those of you not paying attention), All Good are claiming a breach of contract and having apparently attempted to negotiate with Michael they are reportedly considering a claim.

IP Freely would be interested to read Michael's management agreement as Frank DeLeo should as a general rule not have the right to sign such a deal onn Michael's behalf........

Facebook change AGAIN

Facebook, it seems to be all IP Freely writes about these days. But having logged onto his account this morning he noticed a rather interesting new application allowing him (and other users of course) to vote for the sites "governance" documents (EULA and privacy policy to you and me).

IP Freely has previously identified a number of widely known issues with Facebook's EULA and controversy surrounding their proposal to change it. Anyway here's the clauses of the proposed EULA that interests IP Freely:

2. Sharing Your Content and Information

You own all of the content and information you post on Facebook, and you can control how we share your content through your privacy and application settings. In order for us to use certain types of content and provide you with Facebook, you agree to the following:

2.1 For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account (except to the extent your content has been shared with others, and they have not deleted it).
2.2 When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
2.3 We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

5. Protecting Other People’s Rights

We respect other people’s rights, and expect you to do the same.

5.1 You will not post content or take any action on Facebook that infringes someone else’s rights or otherwise violates the law.
5.2 We can remove any content you post on Facebook if we believe that it violates this Statement.
5.3 We will provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page.
5.4 If we removed your content for infringing someone else’s copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal.
5.5 If you repeatedly infringe other people’s intellectual property rights, we will disable your account when appropriate.
5.6 You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665) without our written permission.
5.7 If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.
5.8 You will not post anyone’s identification documents or sensitive financial information on Facebook.

IP Freely particularly likes their "Amendments" clause:

12. Amendments

12.1 We can change this Statement so long as we provide you notice through Facebook (unless you opt-out of such notice) and an opportunity to comment.
12.2 For changes to sections 7, 8, 9, and 11 (sections relating to payments, application developers, website operators, and advertisers), we will give you a minimum of three days notice. For all other changes we will give you a minimum of seven days notice.
12.3 If more than 7,000 users comment on the proposed change, we will also give you the opportunity to participate in a vote in which you will be provided alternatives. The vote shall be binding on us if more than 30% of all active registered users as of the date of the notice vote.
12.4 We can make changes for legal or administrative reasons upon notice without opportunity to comment.