Media and Technology

Singhsburys and Morrisinghs – a risky play on words?
17 July, 2017

A play on words can be an effective way of marketing a business.  However, business owners should be careful when doing this as including words and/or creating words and/or logos which are the same as, or similar to, well known registered trade marks run the risk of trade mark infringement.  On the other side, trademark owners need to consider whether they want to take action against this kind of infringement.

A recent example of this concerned Jel Singh Nagra, who owned a newsagent’s in North Tyneside.  Jel Singh Nagra thought a good name for his business would be Singhsbury’s, creating a sign above his shop which looked as follows:

Image source- The Telegraph

 

Unfortunately for Jel Singh Nagra, Sainsbury’s did not see the comical side of things and threatened legal action against him.  Whilst the specific details of the threatened legal action are unknown, it is likely to have been primarily based on infringement of Sainsbury’s registered trade mark SAINSBURY’S. 

Whilst we do not comment on the merits of any possible trade mark infringement claim that Sainsbury’s may have had against Jel Singh Nagra we thought it useful to recap on the three main ways you can run the risk of trade mark infringement in a commercial/business context.  These are:

i) using a sign that is identical to a registered trade mark in relation to identical goods and/or services which it has been registered for

ii) using a sign which is:

  1. identical to a registered trade mark in relation to similar goods and/or services which it has been registered for; or
  2. similar to a registered trade mark in relation to identical goods and/or services which it has been registered for.

and which gives rise to a likelihood of confusion on the part of the public (which includes a likelihood of association).  

iii) using a sign which is identical/similar to a registered trade mark in relation to similar (or dissimilar) goods and/or services it has been registered for, and such use (where the registered trade mark has a reputation in the UK) takes unfair advantage of, or is detrimental to, the distinctive character or repute of the mark.

In light of the impending legal action from Sainsbury’s, Jel Singh Nagra decided to rename his shop, but rather than steer clear of major supermarket brands, he adopted the name Morrisinghs as depicted below: 

Image source- The Telegraph

 

Fortunately for him, Morrisons appear to have seen the humorous side of things, and rather than resort to legal action, like Sainsbury’s, wished him well. 

In deciding whether to take action against a potential infringer, trademark owners will need to weigh up the importance to them of protecting their brand and deterring others from using identical or similar signs to their trade mark, against the potentially negative publicity created by pursuing the “underdog”, who the public will see as simply engaging in harmless fun.

If you need any advice in relation to trademarks please contact Phil Bilney on +44 (0)1732 224 046 or by email to phil.bilney@cripps.co.uk

 


Court of Appeal sets some limits on requirement to comply with Subject Access Requests
12 July, 2017

The amount of time and resources a business has to spend complying with a subject access request has long been one of the most contentious areas of data protection law, particularly given that most subject access requests (SARs) are made during the course of employment litigation where the relationship between data controller and data subject is already somewhat strained.  Two recent cases[1] seem to have swung the balance a little way back towards the data controller by suggesting there are some limits on the data search that needs to be undertaken following a SAR, but businesses need to be stepping up data protection compliance in advance of new tougher rules to come.

The Data Protection Act 1998 (the DPA) gives people the right to request a copy of their personal data from an organisation by making a SAR.

The DPA puts a legal obligation on organisations to supply “a copy of the information in permanent form” unless to do so is “not possible or would involve disproportionate effort.” So, the right to have a SAR met is balanced by the fact that an organisation does not have to go to any length to do so.

The “disproportionate effort” exemption has been considered by the Court of Appeal on two occasions this year. Prior to these cases it had been assumed that the exemption only applied to the effort involved in providing a copy of the information. However, the Court of Appeal said that it also applies to finding the information in the first place. Therefore, in some circumstances there may be a limit on the extent of the searches that an organisation has to make – but only if the effort outweighs the benefit to the requestor.

Organisations cannot rely upon the “disproportionate effort” exemption to refuse to make any search whatsoever and must remember that the threshold for their efforts remains high. Reasonable and proportionate steps must be taken to find and supply the information requested, even though every item of personal data might not necessarily be retrieved. In the words of the Court: “there may be things lurking beneath another stone which has not been turned over”. Nevertheless, each case will turn on its own facts, and at the end of the day an organisation may have to evidence that reasonable and proportionate steps have been taken to comply with the request.  The Courts have made it clear that, as far as possible, SARs should be actioned.

In June the Information Commissioner’s Office (ICO) updated its Subject Access Code of Practice to reflect the Court of Appeal’s decisions. The ICO has said: “Even if you can show that supplying a copy of information in permanent form would involve disproportionate effort, you must still try to comply with the request in some other way, if the applicant agrees” (see page 45 of the Code of Practice – https://ico.org.uk/media/for-organisations/documents/2014223/subject-access-code-of-practice.pdf).  

Will things change when the General Data Protection Regulation (GDPR) comes into force on 25 May 2018?

The GDPR grants new rights to data subjects which may require organisations to locate, and take action in respect of, personal data. SARs will have to be actioned in a shorter time frame. Data subjects will have new rights to have their inaccurate data rectified, their data erased completely (the “right to be forgotten”), and their data provided to them or other organisations in “a structured, commonly used and machine-readable format” (known as “data portability”).

One might reasonably ask how these new rights can be accommodated if an organisation cannot find all of the personal data in the first place. Will they also be subject to limitations and exemptions similar to those under the current SAR regime? We do not currently know. While proportionality will remain a general principle of EU law, the GDPR may place a greater burden on organisations to know where all of an individual’s personal data is held.  Read more about GDPR here.

In terms of practical steps businesses can take, setting up systems to enable them to deal more efficiently with SARs will be key, so that locating and accessing personal data can be done more quickly and easily.

For further information on the above or any aspect of data protection law please contact George Fahey or Elliot Fry.  For advice on dealing with SAR’s made in relation to employment please contact Erica Dennett.

 

[1] Dawson-Damer and others v Taylor Wessing LLP [2017] EWCA Civ 74 and Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd and Others [2017] EWCA Civ 121.


Cyber security for SME’s – can you hack it?
23 June, 2017

Prior to the recent headline grabbing WannaCry ransomware attack, businesses may have thought such incidents only affected big American companies, the likes of Sony and Ashley Madison. The WannaCry story brings home that cyber crime is a global issue, and one which is set to affect UK businesses more and more in future and to which SME’s are not immune.

 

A government report from earlier this year indicated that 68% of large businesses and 52% of small businesses had suffered a cyber security breach in the past year. Don’t assume that just because your business isn’t national, or high profile, or based around online sales, you’ll be safe. Cyber criminals, as with any other kind, will target anyone, and may see smaller businesses as more vulnerable.

 

Cyber security breaches carry a number of adverse potential consequences. Aside from the business interruption of evaluating and repairing any damage caused, implementing emergency measures, and potentially notifying your customers, breaches of cyber security are bad publicity, and erode the trust and confidence you spend so long building with your customers. Where a breach results in your customers suffering a loss, you may find they turn to you for compensation. Defending legal claims, and dealing with more informal ones, can be expensive and risks further damage to your reputation.

 

So, what can you do about cyber risk? Well, as with every other risk, take steps to mitigate it, and insure against it. Many insurance companies offer a policy covering cyber attacks, and practical advice on risk management and loss prevention. Mitigating and minimising your risk requires more than just effective firewalls and antivirus software.  Implementing segregated networks and least-privilege models ensures that the effect of any breach (be it external, or by an employee) is minimised. Network segregation creates sub-partitions allowing you to limit access to sensitive information, and a least-privilege model gives users only the permissions necessary for them to carry out their role. However, to remain effective these systems need regular checking and updating.  Effective monitoring, alerting and filtering software will help anticipate and prevent  attacks, but training for users on how to identify and avoid suspicious emails and websites is also needed as things like phishing emails become increasingly sophisticated.

 

Cyber security isn’t just a practical requirement, it’s a legal one. Almost every business will hold personal data, and data protection legislation requires them to have adequate security measures in place to protect that data. Businesses who suffer a breach may be subject to fines or sanctions from their professional bodies or the Information Commissioner’s Office (ICO). Holiday insurance company Staysure were fined £175,000 by the ICO after their cyber security failings allowed hackers access to customer credit card and medical details. SME’s can no longer afford to ignore the risks.


Removing Content from Social Media
25 May, 2017

This week saw the publication of allegedly leaked internal Facebook policy documents which set out what is purported to be the company’s latest approach towards policing online content.

 

Abusive or damaging online content can inflict harm both financially and emotionally when it is used to defame, bully, harass, and intimidate others. This applies to businesses as well as individuals.

 

Social media platforms on the whole still rely upon users taking the first step by reporting damaging content and, whilst the reporting process has been made easier, rather frustratingly for complainants not every report will result in a removal of content.

 

If damaging content about your business isn’t taken down following a report to a social media platform, what other action can you take?

 

The answer broadly depends upon why the content is damaging and the type of damage it causes:

 

Reputational Damage

It may be possible to bring a claim for defamation if the content damages  your business’ reputation.

 

In defamation proceedings, if damaging content has not been taken down prior to trial, in addition to a claim for damages and a permanent injunction preventing the comments from being repeated in the future, a party will normally seek an order from the court that the content is taken down.

 

Harassment

Where someone is subjected to “a course of conduct that causes them distress or alarm” this may give rise to a claim under the law of harassment, which can be both a civil and criminal action.  A business may be able to make a claim for harassment if 2 or more of its employees are harassed by a person (or another business) trying to get their employer to do or not do a particular thing. There is a clear risk of harm to the business, as well as to your targeted employees.

 

The remedies available in a harassment claim include an injunction (to restrain the individual (or organisation) from posting further content) and a claim for damages. In addition, if a civil injunction is breached, the claimant can apply for a the defendant to be arrested.

 

Breach of Confidentiality

Where a business has its confidential information published online, it may be able to bring a claim for breach of confidentiality against the disclosing party. 

 

The remedy for such a claim would be an order that the content be taken down; an injunction to restrain further publication (to mitigate the loss); and damages  as compensation for the loss suffered.

 

IP Infringement

IP infringement in the social media context often relates to trade mark and copyright infringement.

 

Copyright infringement can occur when a substantial part of another’s work (which in the commercial context, often constitutes copying online content), is reproduced without permission. A common infringement is a ‘copy-paste’ of the terms of business for example, or the reuse of a photo/image from another’s social media account.

 

The remedies available are similar for both copyright and trade mark infringement: a court order that the content is taken down; an injunction preventing further misuse; and a claim for damages.

 

Conclusion

If a report to the social media platform in question is not successful in having damaging content taken down, there are other potential remedies available. It is recommended that legal advice is sought in any event at an early stage so that an effective plan can be put in place.

 

For more information please contact Will Charlesworth on will.charlesworth@cripps.co.uk or +44 (0)1892 506 004. 

 

Related information

Dealing with damaging online criticism 
Who owns social media content? 


The Government Launches the (delayed) Digital Strategy
8 March, 2017

The Digital Strategy outlines the Government’s plans for investment and development in the digital sector for the foreseeable future. It outlines priority areas for investment,  emphasizing the increasingly crucial role of digital infrastructure and connectivity in modern life.

 

The Government also wants to make the UK as appealing as possible for growing a digital business, particularly in the areas of FinTech (Financial Technology), EdTech (Educational Technology) and video games.     

 

A selection of key points include:

Digital infrastructure

  • Continuance of the plan to roll out 4G and superfast broadband by 2020.
  • £1bn programme for development and uptake of next generation digital infrastructure – including full fibre broadband plans and 5G.

 

Health                          

  • £4.2 billion invested over the next five years in areas such as electronic patient records, apps and wearable devices, telehealth and assistive technologies.

 

Digital Skills

  • Formation of a new Digital Skills Partnership led by Government.
  • Coding becoming part of every stage in the national curriculum.

 

Investment boost

  • £17.3m funding from the Engineering and Physical Sciences Research Council (rather than fresh investment) to support the development of new robotics and Artificial Intelligence technologies in UK universities.

 

Creating five new international tech hubs in emerging markets

  • Creating five tech hubs in emerging markets to create and develop partnerships between UK companies and local tech firms. These hubs will aim to help provide British businesses with a global competitive edge and drive collaboration on skills, innovation, technology, and research and development.

 

Businesses may still however be looking to the Government for more concrete and detailed plans and initiatives and, crucially, funding to help them prepare for an increasingly digitalised industrial environment.   As well as looking for a generally flexible regulatory environment, and an immigration system allowing local labour shortages to be filled where needed, business leaders have identified as key concerns rolling out broadband to business parks and increasing mobile coverage in rural areas.  Commentators have also remarked that the rapid rise in process automation and artificial intelligence requires a change in focus in education and job training to start now, at all levels, in order to create a work force appropriately skilled for the world market, placing an emphasis on skills and talents that are not likely to be quickly overtaken by machines – such as those involving high level creative thinking or highly complex manual tasks.        

 

The full paper can be read here – https://www.gov.uk/government/publications/uk-digital-strategy

 

If you require further information on this, please contact Harry Partridge on  +44 (0)1732 224 092 or harry.partridge@cripps.co.uk 


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