Archive for October, 2009

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Finn end of a broadband wedge

Published October 14, 2009 eCommerce , Geek Stuff Leave a Comment

Interesting to note that Finland has become the first country to make broadband a legal right.  1Mbps to begin with, but they are ambitiously looking to make 100Mbps a legal right by 2015. 

As the most sparsely populated country in Europe, with an average population density of 17 inhabitants per square kilometre, it’s no doubt one of the more challenging places to connect.  That they’ve done this underlines the importance of the world wide web as a means of connecting individuals and communities.  No doubt there are people in areas of the UK who will be eyeing enviously the Finns’ right to a 1Mbps connection being enshrined in law…

Damien Behan

Twitter ye not

Published October 6, 2009 In the Media , Intellectual Property , On Line Defamation , Web law Leave a Comment

As a Scottish litigator and lover of the very specific and detailed rules relating to service and intimation in the Court of Session I was shocked when I saw that the English High Court had allowed service of an injunction via Twitter. My initial reaction was that there was no way that such a thing would be allowed in Scotland.

However, upon further research, it appears that this could also be attempted north of the border. The Scots equivalent of an injunction is an interdict and when one is seeking an interdict it is usual to seek an order for interim interdict pending a full hearing. In reality most IP actions tend to come to an end at this stage.

If one succesfully obtains an order for interim interdict normal practice is to rush to the court offices and obtain a certified copy of the court order which is then served by Messengers-at-Arms (process servers). It was this level of formality which led me to my shock at the suggestion that an order for interim interdict could possibly be served informally.

However, having looked more closely at the Court Rules and some older authorities, it appears that the position in Scots Law is that an order for interim interdict is valid as soon as it is granted by a judge. It then becomes operative when the respondent or defender becomes sufficiently aware of its contents (Clark v Stirling (1839) 1 D 955 and Burn-Murdoch on Interdict at para 447). Strictly speaking then, there is no formal requirement for service in order for the interim interdict to become operative.

Theoretically then, one could argue in proceedings for breach of interdict that the defender had been made sufficiently aware of the contents of the order as a result of service by Twitter. It is likely though that the bigger problem in Scots law would be obtaining an interim interdict against an unknown defender (the general rule being that interdict cannot affect unnamed persons (Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122).)

There are options here as well though. If contacting the site moderator and ISP prove unsuccesful, it would also be possible to seek an order from the Court under s1(1A) of the Administration of Justice (Scotland) Act 1972 compelling the host site or ISP to disclose such information as they may have regarding the identity of the blogger. I feel another blog coming on…..

Iain Rutherford

Update: Google Books, Pimm’s and Pitcher’s

Published October 5, 2009 Intellectual Property , Trade Marks , Web law Leave a Comment

In an exciting TechBlog update, we can report the latest development in the Google Books dispute which we originally reported on last week. The Department of Justice was scheduled to consider Google’s proposed Settlement Agreement at a “Fairness Hearing” on October 7th. However the plaintiffs in the dispute, the US Authors Guild, moved last week for an adjournment of the Hearing. Google did not oppose. This adjournment is a clear admission that the parties need to redraft the Agreement.

It’s thought that the parties took this step in response to a recent announcement by the Department of Justice to the effect that the Agreement in its present form probably violated antitrust law. In passing the motion, Federal Judge Chin’s Court Order noted: “the current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, non-profit organizations and prominent authors and law professors.” Nobody important then.

Diageo and Sainsbury’s, meanwhile, have managed to put down their handbags and have ended the Pimm’s/Pitcher’s dispute which we reported on  last month. The specifics of the deal are under wraps but we understand that Sainsbury’s can maintain the “Pitcher’s” brand but will have to add “Sainsbury’s” to the label and also change the colour of the label from gold to orange. The practical impact of these changes is pretty unclear and they might not make much difference to the consumer. It reminds me a bit of the time I went to see the Golden Gate Bridge in San Francisco and reckoned it was far more “red” than “golden”, only to be told by a tour guide that the colour of paint actually used on it was “international orange”. I think Sainsbury’s have got a good deal here (provided that Pitcher’s isn’t a dud product which will tarnish their brand).

John McGonagle

Domain names and CPD hours!

Published October 2, 2009 Domain Names , Trade Marks Leave a Comment

Just a quick reminder about our next event in the firm’s autumn seminar series.

Iain Rutherford and Grant Campbell will be talking about domain name disputes next Wednesday, 7 October, from 9 till 10am at our Glasgow offices. The session is a practical look at the rights involved in domain name disputes and the options available for resolving them. It also provides some suggestions on formulating an online brand protection strategy.

This week’s session in Edinburgh brought out some interesting views from our audience on the law’s stance on cyber squatting and in particular the extent to which the law should view it as legitimate entrepeneurship.

For more details and to register, please take this link.

Alternatively, please don’t hesitate to contact one of us if you would prefer.

Eleanor Peterkin

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