Thursday, June 11, 2009


Facebook are allowing users to chose user names for the first time i.e. the users URL will be for example.

Which makes IP Freely think 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.


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!

Thursday, June 4, 2009

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."

Wednesday, June 3, 2009

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.