Thursday, June 19, 2008

Astroturfers are sent off?

Astroturfing is the process where by a retail or service provider leaves fake and very favourable feedback about their own goods and services. From people I have talked to this is a wide spread practice and concumers are aware not to fully trust very positive feedback.

However, new legislation may have made this practice illegal. The Unfair Commercial Practices legislation says that you are not allowed to deceive or make false represenations about products. This would seem to encompass astroturfing.

Don't panic though. The OFT have to police the legislation and are unlikely to investigate such practices.

Monday, June 09, 2008

Commuinty Trade Mark to become cheaper?

Apparently the Office of Harmonisation for the Internal Market, which oversees Community Registered Trade Marks and Registered Designs, has a surplus of €300m from application fees.

As a result there are plans to reduce the cost of a Community Trade Mark Application. On the face of it this seems like a good thing but if the application becomes cheaper, logically, more people will apply. However, with more applications, presumably, there will be more oppositions, registrations and potentially a dilution of marks. So I would question whether this reduction in fees will be beneficial?

We will see if, during the difficult economic climate, whether such a reduction ever comes to fruition....

Thursday, June 05, 2008

Community Design Rights - a further erosion?

Following the narrow interpretation of what consitutes a "different overall impression" earlier this year there appears to be a further erosion of the strength of a Community Registered Design (CRD).

A recent case regarding plastic balls for tumble dryers has clarified that any pre-dating design, no matter what field of industry, can be used to destroy the novelty of a design and thus provide an opportunity to invalidate the registered design.

Obviously, this widens the scope of what represents prior art and is compounded by the numerous states that the CDR encompasses. In this case a massage ball was used to invalidate the CDR for the tumble dryer ball.

I believe this makes product clearence searches for pre-existing designs almost impossible to do without significant risk.

However, if a Patent is not available or is too expensive then CDR and UK registered designs are still the next best protection despite the erosion.

Data Protection - a new era

After a number of Data Protection 'boobs' including the high profile child benefit data scandal, the Information Commissioner is being given new powers. The Data Protection Act is overseen in the UK by the Infomation Commissioner who is responsible for enforcing the DPA. The DPA requires businesses to comply with the 8 Data Protection Principles which includes the duty to keep personal data secure.

On the 8th May 2008 the Criminal Justice and Immigration Act was passed by parliament ammending the Data Protection Act 1998 (DPA). This legislation facilitates a new system of fines that can be levied on businesses that knowingly or recklessly disclose personal information.

These powers do not come into force until secondary legislation is brought in to give effect to it so do not panic just yet.

However, adverse publicity can still be seen to be the most powerful deterrant to non compliance.

Tuesday, June 03, 2008

New Legislation could help intellectual property owners to enforce their rights.

The Consumer Protection from Unfair Trading Regulations (CPUTR) and The Business Protection from Misleading Marketing Regulations came into force on the 26 May 2008 with the aim of protecting consumers and suppliers from unfair commercial practices.

One of the most interesting prohibited activities provided in the legislation is "Faking Goods" ie "Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not" (Schedule 1, para 13 CPUTR). This activity is considered 'unfair' in all circumstances.

This could be equated to a 'passing off action' for similar get up or a design right infringement action. However, the main difference is that the rights owner cannot enforce this legislation themselves. The Office of Fair Trading has been given the power to enforce this legislation so all a rights holder can do is to report an offender to the OFT.

There will also need to be some case law to interpret what is meant by 'deliberatly mislead' as this is not included in the definitions contained within the legislation. I suspect that this will, in practice, be difficult to prove.

The sanctions for breach of these laws includes a maximum of 2 years imprisonment and a £5,000 fine so are not to be taken lightly.

Obviously having the OFT taking action against a third party infringer is cheaper than enforcing the rights yourself. However, the OFT's ability to investigate and enforce is limited to the resources they have available and so any action could be too late to prevent irreparable damage to your products or goodwill.

However, this is an extra weapon to be used in the war on piracy and counterfeiting and is probably something that should be considered in conjunction with civil action.

Nominet joins the 21st Century

On 25 June 2008 Nominet (the body that oversees domains) will be replacing the laborious system of paper based domain name transfers with an online system. This brings Nominet in line with the transfers of top level domians. (ie .com)

The fee will be the same (£10 per transfer) but the administration burden should be dramatically reduced without the need for letters of confirmation from the assignor and assignee. The bulk transfer fee is also being reduced from £22 to £10.

This move is to be welcomed and not before time.

Monday, June 02, 2008

Online content ratings

There is a new voluntary classification scheme for online content run by the British Board of Film Classification

Many of the major studios have signed up already.

I would question whether this offline classification system is transferable to an online environment with content being accessible anywhere in the world.

Piracy - a new gamekeeper?

The general rule is that IP owners have to police and enforce their own rights through the civil courts, but a recent case brought by Hertfordshire County Council under money laundering legislation showed that criminal proceedings can be just as effective.

In that case the directors of a company were found guilty of money laundering because they received rent which was paid from the proceeds of selling pirated and counterfeit goods on the market stalls.

This also acts as a warning to landlords who receive rent from tenants they consider to be "dubious". The maximum prison sentence if found guilty is 14 years!

This is a very new area of law and there is an appeal underway. So watch this space!