E Update November 2008
Businesses should be wary of misleading advertisements
The Advertising Standards Authority (ASA) has recently made a ruling against Perfect Pictures UK Ltd (PP) for breaching the CAP Code by using a logo which was misleadingly similar to that of an existing trade body.
The complaint was made to ASA by the Confederation of Aerial Industries (CAI) against one of PP’s, advertisements, which displayed a logo stating “approved member FDI quality assured”.
The ASA ruled that similarities between the CAI logo and the advertisement’s logo were likely to mislead readers by mistakenly implying that PP was a member of the CAI. This breaches the Committee of Advertising Practice Code, (CAP Code) rules, which govern print advertising.
As a result of the lack of evidence in relation to the role or membership of Federation of Digital Installers (FDI), the ASA also concluded that the reference to this body in the advertisement was also misleading and thus in breach of the CAP Code.
This recent ruling acts as a reminder to all businesses to be careful not to imply membership of trade or industry bodies in their advertisements and to otherwise think carefully about possible competitor complaints about your advertising.
New guidance on gambling advertisements
The Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) have recently issued new guidance on gambling advertisements.
The guidance has been issued in order to complement the new rules on gambling advertising which were introduced on 1 September 2007 to coincide with the Gambling Act 2005 coming into force. Essentially, the emphasis of the new rules is the protection of consumers, especially the young and vulnerable.
This is useful guidance, which will be helpful to gambling advertisers that still find themselves’ getting to grips with the new regime.
For further detail on this guidance please take a look at the CAP website on www.asa.org.uk/cap.
Passing off and trade mark infringement in ice cream dispute
In a recent case between manufacturers and retailers of kulfi ice cream, the High Court has upheld the Claimant’s allegations of trade mark infringement and passing off.
Tubzee Limited, which has been trading since 2000, had owned several trademarks, one of which was a UK trade mark with a stylised “k” (including an elongated dropped tail) and a community mark, which featured two traditional Indian matka pots pouring white liquid over ice cubes. Safron Food Limited initially traded under a design which had little in common with Tubzee’s packaging. However, following a re-design in 2006, Safron’s ice cream was sold under a design which included the same “k” design in addition to the pots pouring white liquid.
Safron’s claims that they failed to appreciate the similarities between the marks was rejected by the High Court. The Court found that there was a likelihood of confusion between the parties’ products under the Trade Marks Act 1994. In relation to the passing off, the Court held that Tubzee had goodwill in its product’s get-up, Safron’s use of the features amounted to misrepresentation and that Tubzee suffered some damage as a result of Safron’s actions.
Two of Safron’s directors were held to be personally liable for the passing off and trade mark infringement as they were found to have procured the company to commit these acts. Directors need to be careful when selecting product designs to ensure that they are not similar to existing trademarks but also, that they do not bear any resemblance to their competitors’ product designs.
Government creates a storm over plans to create a big brother database
The early plans to create a giant “big brother” database which would store information about every phone call, email and internet visit made by everyone in the UK have been criticised by the Government’s very own terrorism watchdog.
Lord Carlile, the independent reviewer of anti-terrorist laws described the idea of the database as “awful” and said that controls were needed to stop government agencies from using the database as a way of being able to carry out fishing expeditions into the private lives of the public. Nevertheless, the Home Secretary, Jacqui Smith, is expected to signal the Goverment’s intention to proceed with the proposals to collect more details about people’s phone, email and web browsing habits as she warns that the terrorist threat to Britain is growing.
The controversial measure will be included under the Data Communications Bill. Under the current proposals, internet service providers and telecom companies would hand over millions of phone and internet records to the Home Office, which would store them for at least 12 months so that the police and security services could access them.
The Information Commissioner, Richard Thomas, has described the plans as “a step too far for the British way of life” and that although it is clear that more needs to be done to protect people’s personal information, creating big databases means that you can never eliminate the risk that data will fall into the wrong hands.
Tackling IP Crime
The UK Intellectual Property Office (UKIPO) is to take an active role in helping the newly established Global Prosecutors’ E – Crime Network (GPEN) to overcome intellectual property crime.
The UK IPO will assist the Crown Prosecution Service in providing a range of IP training material. The GPEN consists of a database of e-crime prosecutors, a forum for exchanging advice, and e - crime material. It is hoped that the Network’s activity will lead to more successful prosecutions in the fight to tackle the current multi - billion intellectual property crime business.
David Lammy, the minister for Higher Education and Intellectual Property has said that “IP crime is a serious economic crime which needs to be tackled on a worldwide basis. The GPEN provides an ideal opportunity to address this.
The aim is for the UK IPO’s role to assist in the effective management of prosecutions and to help enforcement agencies in taking informed decisions on targeting the criminal network.
ICANN’s plans to expand generic TLD’s
One of the basic principles of the Internet Corporation for Assigned Names and Numbers (ICANN) is to promote competition in the domain name marketplace. In light of this, ICANN has recently announced that it intends to expand the current number of generic top level domain names (TLD’s), which currently consists of only 21 names.
A TLD is the last part of an internet domain name or in other words, the letters followed by the dot com part of a domain name. ICANN believe that the expansion of the current range will allow for more innovation, choice and change to the internet’s addressing system. With 1.5 billion internet users, ICANN believe that this greater choice will be welcomed and the greater competition which follows, are all factors which will ensure the continued success of the global network.
ICANN finally reached this decision in June 2008 after a lengthy and detailed consultation process. Representatives from governments, civil society, business and intellectual property constituencies and the technology community were all involved in the discussions leading up to the final decision.
For more information on generic TLD’s, on the work of ICANN or for detail on the policy process leading to this decision can be found on the ICANN website at www.icann.org.
IT contractor breaks copyright and database laws in data raid
The High Court has recently delivered a judgment which provides a timely reminder for IT retrieval specialists and IT consultants to check carefully whether the work their customers ask them to do is legal.
Magical Marking Limited v Sean Holly involved an IT consultant who was asked by a former director of a company to copy all of the company’s electronic business records and to add new systems passwords which prevented existing staff from using the system. Alarm bells should have run, but the IT consultant accepted the work and attended the company’s office together with two large security guards who intimidated the office staff to allow access to the system. The IT consultant claimed that he thought the former director was authorised to instruct him to do this work. The Court rejected this argument, as he should have realised that the instructions were unlawful, and granted an injunction and ordered him to pay damages.
Whilst this case is an extreme example, IT contractors should always exercise caution before accepting jobs which require them to access or take copies of confidential data from third party’s system, as generally this needs to be authorised by a Court Order.