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Subject: RE: UKNM: website hijacking
From: Ben Metcalfe
Date: Fri, 22 Dec 2000 12:34:10 GMT

Interesting email, Alex.

When I get time, there are a few points I would like to discuss. But in the
meantime...

"As a lawyer I look at it and see pound signs": You assume that the copycat
is a business with assets. Quite often these rip-off sites are done by
individuals (sometimes even teens/students). But hey, that's the beauty of
the web: everyone has the tools to make a professional looking site (even if
it is a rip-off!)


Cheers

Ben Metcalfe{ Web Producer ~ BBC News New Media }

Phone{ 020 8225 8192 }
BBC News Online{ http://news.bbc.co.uk/ }
BBC News iTV{ http://news.bbc.co.uk/low/english/nitv/ }

Webcam{ http://www.benmetcalfe.com/webcam }


-----Original Message-----
From: Alex Chapman [alexatbriffa [dot] com (mailto:alexatbriffa [dot] com)]
Sent: 19 December 2000 20:16
To: uknmatchinwag [dot] com
Subject: RE: UKNM: website hijacking


Rick

It seems crazy that anyone would even think of such a thing in the present
day and age and as a list member I just wonder what the motivation for
doing so is.

As a lawyer I look at it and see pound signs (I know I am supposed to - its
a lottery) and think that there is some firm out there with a very
interesting case on their hands.

Professionally I can't say for certain that this is a case of copyright
infringement (which if done knowingly and on a commercial scale may be a
criminal offence) and, as you say, passing off, without knowing more about
the facts. However in a hypothetical case where X has a site and Y copies
it substantially then it would be.

The reasons:

In the tort of passing off in that:
the use of a site that is an imitation of x's without x's consent, may be
calculated to cause confusion and has / may cause confusion and damage;
members of the public may be led to believe that the y's goods and services
are those of x or x's business and/or are in some connected or associated
with x;
y may have acted with the intention of taking advantage of x's reputation
and goodwill or alternatively knowing of the risk of confusion and decided
to take that risk.
it is or can be inferred that it is their intention to appropriate x's
goodwill.

Further or in the alternative under the Copyright Designs and Patents Act
1988 in that:

x's site constitutes an artistic and literary work (software code etc) in
which artistic and literary copyright subsists;
x is the author and first owner of copyright subsisting therein (if it is);
and
the creation for and use by y of a site that is an imitation of x's without
x's consent may amount to copying and issuing of copies to the public.

Further x may be entitled to additional damages pursuant to section 97(2)
of the Copyright Designs and Patents Act 1988 by reason of flagrancy of the
infringement.

x may be entitled to commence proceedings against ijacko and a Court may
make an order against it. The remedies available to you at the Court's
discretion are:

(1) An emergency injunction restraining y from infringing x's rights
until
trial or further order;
(2) A final injunction following trial;
(3) Delivery up or destruction on oath of any material offending against
the aforementioned injunction;
(4) Damages or an account of profits; and
(5) Legal costs.

Its hard to be more specific here as far as advice is concerned - there are
a number of free articles and briefing notes at our sites www.briffa.com,
www.gameslaw.com and www.justadlaw.com for general advice though.

Do give me a mail off list if you want to talk the matter over (free of
course)

All the best

Alex

Alex Chapman
BRIFFA
Business Design Centre
Islington
London
N1 0QH

t: 020 7288 6003
f: 020 7288 6004
d: 020 7288 6076

e: alexatbriffa [dot] com

[Sam says: msg chopped]


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