What's in this issue:
The newsletter this month reports on the liability of a parent company for the infringement of copyright by a subsidiary, who owns the rights to the Rover MG trade marks and the patent spat between Motorola and BlackBerry.
In addition, privacy is still high on the news agenda with the Information Commissioner's Office (ICO) launching yet another new education initiative this month - free materials for businesses to use to raise awareness amongst their staff (see first article below).
The ICO continues with its carrot and stick approach but, unfortunately, the "carrots" slowly become smaller and the "sticks" (fines, imprisonment, etc) gradually larger. If you haven't already made sure that your privacy policies are watertight, now is a good time to do just that. Please contact me if you need any assistance on this front, or any other -
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Think Privacy
A new privacy campaign has been launched on The Information Commissioner's Office website. A range of free downloadable materials, including posters, bin stickers and postcards developed by various organisations, are available as useful tools for businesses to promote privacy matters within their own organisations.
Link to free materials
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Update on cross-border data transfers
Standard contractual clauses for the transfer of personal data to non-EU countries not recognised as offering an adequate level of data protection (controller-to-processor clauses), have been updated by the European Commission. The new controller-to-processor clauses take account of the expansion of outsourcing of work by EU businesses to companies in third world countries. Revised clauses include specific provisions allowing outsourcing to other sub-processors provided they are under contractual obligation to handle the data in accordance with EU requirements, and that appropriate technical and security measures are in place in the country of final destination. Data subjects will be granted third party beneficiary rights against the EU data exporter and, under certain circumstances, against the non-EU data importer to enforce several of the contractual obligations under the standard contractual clauses. The revised clauses will come into force on 15 May 2010.
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Revealing code
An interim code of practice for the use of body scanners by airport operators at UK airports has been published by the Department of Transport. Among other things the code states that an effective privacy policy must be in place to protect passengers when being screened. There are a number of requirements in relation to data protection, including an obligation to inform passengers that they may be required to be screened and the immediate destruction of all images after completion of the scanning analysis. The code will be reviewed after forthcoming consultation on the use of body scanners.
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The Information Commissioner consults
Consultation is taking place on a draft code of practice from The Information Commissioner on how the decision to serve an assessment notice on organisations should be taken and how compulsory audits should be conducted. New powers were given to the Commissioner in the Coroners and Justice Act 2009. The legislation amended the Data Protection Act and the new code of practice is due to come into force in April 2010. This gives the Commissioner the right to serve assessment notices on a government department, designated public authority or other persons of a relevant description designated by the Secretary of State, and to establish whether they are complying with the data protection principles.
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Still feeling the heat
You may recall that just over a year ago this newsletter reported the case relating to a patent for a display cabinet for hot food. The cabinet uses warm air to keep the food hot and a curtain of air across the open front of the cabinet while allowing customers to reach in to pick up an item. The patent was found to be valid and it had therefore been infringed. The Court of Appeal has now upheld that decision and found there are no grounds in law for overturning the judgement.
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UK subsidiary in hot water
Following a judgment on liability in a contract dispute, the High Court has found the US parent company of a UK company liable for the UK company's copyright infringement. The US parent company had already been found liable for copyright infringement of the computer games in question, which were the subject of an exclusive licence to the claimant. The court found that the US parent company had participated in and authorised the infringing activities of the UK subsidiary - the making, distribution and sale of the relevant products.
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Publish abroad and be damned
Convictions against two defendants for the offences of publication of racially inflammatory material have been upheld by the Court of Appeal. Although the website publishing the material was located in California, the court found that the majority of the criminal activities under the Public Order Act took place in the UK. This is reported to be the first conviction in the UK for inciting racial hatred via a foreign website. The Court confirmed that the question of jurisdiction was governed by the "substantial measure" test and that the term "written material" was wide enough to include the contents of the relevant website.
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Pilot site for terror and hate
The Home Office has launched a pilot online system for the public to report terrorism, extremism and hate content found on the internet. A dedicated webpage on the Directgov website provides advice on what to do if you find this content online. The page explains what is illegal information and has a facility for sending a report to the police. Also included are instructions on how to find who is hosting the website enabling members of the public to contact the relevant internet service provider.
DirectGov
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Pressed for standards
A report on libel, privacy and press standards has been published by the House of Commons Culture, Media and Sport Select Committee. Calls for legislation on privacy have been rejected. However there are recommendations for changes to the Press Complaints Commission Code of conduct. This would require journalists to notify the subject of their articles prior to publication, subject to a "public interest" test. The report also calls for a fast-track procedure for appeals from interim injunction decisions. The report says that the Press Complaints Commission lacks credibility and authority and recommends renaming it the Press Complaints and Standards Commission, to reflect its regulatory role. The new commission should have the power to fine its members and, in the most serious cases, suspend the printing of the offending publication for one issue. Even though the recommendations have the support from members of all political parties, it is not clear whether the Committee's recommendations will be adopted by government.
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Copyright Tribunal appeal fails
The High Court has dismissed an appeal against the findings of the Copyright Tribunal regarding increases in royalties payable to Phonographic Performance Limited (PPL). The court said the tribunal had not made any error of law and PPL was attempting to re-argue the case. The appeal relates to the royalties for public performances in public houses, bars, restaurants, cafes, shops, offices and factories. This case illustrates that unless the tribunal has acted irrationally or made a legal error the court is unlikely to interfere with its findings.
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Restaurant passes off
A company owning a London restaurant has been found to have infringed a Community trade mark by using the same name as a hotel in Venice and the Court of Appeal has upheld the High Court's decision in the case. There was no ‘own name defence’ the court held and the use of the name amounted to unfair competition and was not in accordance with honest practices in commercial matters as required. Also rejected was the appellant's argument that there was concurrent goodwill in respect of restaurants with that name in the UK and that the trade mark has been applied for in bad faith.
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MG trade mark in dispute
A recent High Court case has demonstrated how important it is to have a clear structure which deals with the transfer of assets, trade marks and goodwill when companies are in administration or liquidation, particularly when there are new owners. The decision went in favour of the Nanjing Automobile Group, which acquired most of the assets and trade marks of the MG Rover Group, in a trade mark infringement and passing off case. Arguing that it was entitled to the MG X Power trade mark under a later asset sale agreement, the defendant had been making and selling cars under the MG logo and MG letter marks. A number of elaborate arguments were made together with a counterclaim for revocation. These were generally rejected by the judge after a decision was taken on the construction of the two asset sale agreements. Evidence included correspondence passing between the various companies, including the liquidators, and their advisers.
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Fruitful decision
Motorola's patent relating to methods of providing messages - including email - over wireless networks to individual devices like mobile phones, has been found invalid and therefore not infringed by BlackBerry. The judge decided that a private email relating to a publicly known system was evidence that a particular technique - an aspect of the patented invention and described in the email - was common general knowledge. If the technique was not common general knowledge then it had not been disclosed sufficiently in the patent. Imaginative reconstruction to interpret the patent could not be used in the argument, he said. The fact that the server for one of the accused BlackBerry systems was located in Canada, meant that that system could not infringe the UK method patent.
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And finally... unknown unknowns come to light
The High Court has refused to renew an interim injunction sought on the basis of breach of confidence or misuse of private information. The injunction prevented the publication of information about a relationship between a famous sportsman and another person. Evidence showed that the nub of the sportsman's case was that he wished to protect his reputation, particularly with his sponsors. A precedent dating back to 1891 precluded the granting of an injunction as no interim injunction may be granted where a defendant is proposing to publish defamatory material he alleges to be true. In any event, damages would be an adequate remedy. Even if the judge was wrong about this and the privacy rule applied, he concluded that no injunction should be granted. The judge could not decide if the sportsman was likely to prove at trial that the publication should not be allowed given the potential public interest defence. No notice had been made to any newspapers when the interim injunction was sought, a fact that the judge criticised. He was also critical of the breadth of the draft order which lacked open justice and fairness and included a prohibition on publication of the existence of the proceedings.
© Copyright Karen Mason 2010
