CommTech Newsletter August 2008
Difficulties of registering domain names
Cosmos European Travels AG (complainant) has been unsuccessful in a claim challenging the registration of cosmosholidays.net by the Hong Kong company, United Cosmos Travel Group (registrant).
The registrant is a well-known hotel reservation service provider in China, and had registered the domain name in 2005 without any knowledge of the complainant. The registrant was able to produce web- traffic statistics showing that all the traffic to its site came from China and that none of the traffic to the complainant’s site came from China. The registrant also claimed that the complainants business was unknown in China.
The World Intellectual Property Organisation panellist found that the complainant had failed to show that its reputation extended to China by the time the registrant had registered its domain name. This case demonstrates that even well-known companies can encounter problems expanding into new territories, when they have not yet acquired a reputation there.
ECHR ruling establishes link between the protection of personal data and Human Rights
In a recent case, the European Court of Human Rights established that a breach of data protection legislation may amount to a breach of the right to privacy under the European Convention on Human Rights.
The case involved the failure of a Finnish hospital to keep a patient’s medical records confidential. While there were privacy laws in place in Finland at the relevant time, the Claimant had to show that there was link between the deficiencies in the hospitals security rules and the dissemination of information about her medical condition. The Claimant was unable to prove such a link.
The Court ruled that the Convention imposed a positive obligation on public bodies and governments to implement measures to keep private data confidential. It held that Finnish Law did not go far enough to prevent unauthorised access from occurring in the first place, and as such Finland had failed in its positive obligation under the Convention.
This case is important as it gives rise to the possibility that data subjects may now have a separate claim for compensation against the UK government for failure to adequately protect private information held about them, where such a failure has been made by a public body. This may be relevant, for example, in cases such as the recent loss of Child Benefit data by HMRC.
Patent ruling rocks Biotech companies
The High Court has revoked a patent held by Human Genome Sciences on a disease-linked protein known as ‘Neutrokine-alpha’. ‘Neutrokine-alpha’ has been found to trigger inflammation in the body, and has immense potential value to the pharmaceutical industry owing to its potential use in treating diseases such as arthritis, asthma and chronic pulmonary disease, which are all caused by inflammation.
Human Genome Sciences (HGS) applied for the patent on the protein in the mid 1990’s without specifying its precise biological function, the conditions it caused or the diseases it would be able to treat. The patent was invalidated as the company had failed to identify any practical use at the time its application had been filed. While this ruling is a blow to HGS, who has been collaborating with GlaxoSmithKline on a neutrokinealpha antibody known as Lymphostat for the treatment of rheumatoid arthritis and lupus, it is a boost to Eli Lilly.
The US pharmaceutical company has spent $50 million developing an antibody to neutrokine-alpha, and expects to spend another $250 million bringing the therapy through clinical trials. This case is important as it is the first to consider how bioinformatics, the use of powerful computer programmes to work out the relationship between the human genome and the design of drugs, affects patentability.
Trade mark owner wins Cybersquatting case
In Patel v Allos Therepeutics Inc, the High Court has rejected an argument that the right to freedom of expression should prevent the transfer of a domain name from Mr Patel, a cybersquatter, to Allos Therepeutics Inc, a global biopharmaceutical company.
Mr Patel registered the domain allustherapuetics.com with the intention of using it as a protest website critical of Allos. Using the World Intellectual Property Organisation’s (WIPO) dispute resolution process, Allos successfully applied to have the domain name transferred to them.
Mr Patel applied to the court to overturn the decision on the grounds that the domain name transfer would interfere with his right to freedom of expression set out in Article ten of the European Convention on Human Rights. The court held that while the promotion of free speech is generally considered to be in the public’s best interest, this has to be balanced with the right of the trade mark owner to freely use its own name. Mr Patel had used Allos’ trade mark on the website, and had registered the domain name without indicating that it would point to a protest website.
Mr Patel was therefore posing as Allos in order to attract people to his website, which would confuse the public. The court ruled that this was not a legitimate use of free speech.
This case strengthens the position of trade mark owners in domain name disputes. However, it may leave open the possibility of a successful appeal on the grounds of free speech where a cybersquatter has used a company name but made it clear that it is pointing to a protest website.
Of further interest, the court also made it clear that it was unable to act as an appellate body to decisions made by WIPO.
Increase in the choice of internet suffixes
The Internet Corporation for Assigned Names and Numbers (Icann) has recently announced plans to allow the creation of customised domain names, enabling businesses to choose any suffix they please for their internet addresses. Icann hope to encourage more businesses to move away from the most commonly used suffixes such as .com, .co and .org. Icann plans to start accepting applications for new domain names in April or May of next year, and expects the cost of registering a new suffix to be in the region of $100,000 – far higher than the current price of a .com name, which is approximately $14.
Icann hopes that the high cost will deter ‘domain squatters’ who purchase company – related domain names and try to sell them back to the company for a profit. However, many commentators doubt the effectiveness of the move, believing that it will increase customer confusion and contribute to a rise in dispute cases.
The most recent large scale domain launch of .biz in 2001 has not been successful in reducing business reliance on the .com suffix. There are fewer than 7 million registrations for .biz, while there are currently over 77 million for .com. In addition, 30 per cent of .biz registrations were made by organisations that already owned the .com version of the domain name. As such, many expect that despite Icann’s plans, the initial demand for the registration of new suffixes will be limited.
Government collaborates with film and music industry to tackle unlawful file sharing
An agreement signed by music and film rights holders, six major internet service providers and the Government, is a world first in tackling consumer abuse of music and film rights through online file sharing.
The Government will work in collaboration with the internet service providers and the film and music industry to educate users about unlawful file sharing, whilst at the same time making material legally available online in a range of user-friendly formats. The aim is to create a self-regulatory environment which protects the film and music industries, but which provides greater access for consumers.