It's been way to long

The title says it all.

IP Freely has been very busy for the last god knows how many months and has really neglected his blogging duties and slew of loyal followers.

In the meantime we have had some interesting law: the Advocate General's opinion on the Adwords cases in particular. IP Freely really isn't sure what he thinks about this particular one. Fine I don't see that Google are infringing anyone's trade marks after all there are many legitimate owners (or users) of the same mark, not to mention the stifling effect stopping Adwords would have on Google and thus technology as a whole. However the AG's opinion to me just doesn't read right he bangs on about the similarities with comparative advertising etc which simply are not relevant and dismisses the potential of protection under that defence that I can't think of the name of (the one that's like the hosting defence but not) which would appear to be most relevant. It is also a shame that he bottled the chance to also comment on whether the advertisers themselves were liable for trade mark infringement, although reading between the lines one would say that it seems likely.

IP Freely is particularly looking forward to the ECJ decision on the above and more importantly the ECJ (and I guess the AG's opinion) on the other Adwords references. As well as a p2p case actually making it to court and being properly defended so that some kind of precedent can be established.

One not so interesting area of law (that IP Freely is currently trying to master but doesn't know where to start) is the implementation of a further 550 sections of the Companies Act 2006.......... we should have just kept the old one!

Anyway so long for now but in true Hollywood style I'll be back!

All quiet

I must apologise, it has been ages since my last post. Basically the LPC (Distinction lovely!) and then starting a training contract as soon as I finished really got in the way of blogging.

However I am determined to get writing again so look out!

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