LloydLaw LLP

The New .Mobi Domains Go On Sale

The new .Mobi domains went on general sale this week (26 September to be precise) following a short sunshine period in which the owners of registered trademarks have been entitled to register their domains . The Register gives details of where you can go to buy the domain, and confirms that it will be used exclusively for use on mobile phones and mobile devices.

dotMobi Ltd, the Irish company appointed by ICANN to administer the newest top level domain, is supported by all the big names in the mobile industry, and its investors include:

Ericsson, Google, GSM Association, Hutchison, Microsoft, Nokia, Orascom Telecom, Samsung Electronics, Syniverse, T-Mobile, Telefónica Móviles, TIM and Vodafone.

There's loads of background information on the dotMobi website and the blog.

I am minded to agree with with Techcrunch UK that " It’s clear that the launch of dotMobi is creating a lot of buzz about using the Web on your mobile, which is a “good thing.”

How that will manifest itself in reality, is another thing entirely, but content providers and anyone with a trade mark, should seriously be thinking about whether they should add the domain to their brand portfolio.

Business Books 2006

On the basis that it is business books, that give a real sense of the zeitgeist, much more than blogs or newspapers, I am always interested to see what's considered worth reading.

The shortlist for the The Financial Times and Goldman Sachs Business Book of the Year Award has just been announced and the shortlisted books are:

THE LONG TAIL By Chris Anderson

SMALL GIANTS By Bo Burlingham

THE WAL-MART EFFECT By Charles Fishman

CHINA SHAKES THE WORLD By James Kynge

THE BOX By Marc Levinson

The award aims to identify the book that provides the most compelling and enjoyable insight into modern business issues, including management, finance and economics. I have to confess that as busy, busy lawyers neither of us have  had the time to digest any of these, but The Long Tail is a nailed on certainty to be read before Christmas.

Commissioners for Oaths

One question we get asked a lot, is whether we, as solicitors, are also "Commissioners for Oaths".

Anyone who has has to swear an affidavit, or take a statutory declaration (in England and Wales)  will be advised that the document needs to be sworn (or affirmed) before an solicitor or "commissioner for oaths".

In fact, all solicitors with current practising certificates (issued by the Law Society) are entitled to admininster an oath, but it's not just solicitors by any means. Barristers, notaries public. licensed conveyancers and Fellows of the Institute of Chartered Legal Executives are all entitled to adminster oaths as are certain officials at the High Court, and  your local County Court. You can even ask a Judge or a Justice of the Peace (Magistrate) to do it for you.

One of the critical issues for solicitors is that they shouldn't have any involvement in the matter at all. In fact, a solicitor who carries out a "swear" or a "stat dec" has very little interest in the contents of the document, other than the formality of adminstering the oath or the statutory declaration. I say "very little" because if a solicitor has good reason  to believe that the oath or declaration is false, that solicitor must refuse to administer it.

If you need to get a solicitor to carry out a "swear" or a "stat dec" my suggestion is that you ring a firm of solicitors close to you and ask if you can pop in. The fees are prescribed (£5 for an affidavit and £2 per exhibit) so if someone asks you for more than than, keep phoning around.

Here at LloydLaw we are more than happy to help people out with "swears" so if anyone in London SE1 needs a document sworn  or they need a solicitor or commissioner for oaths to take a statutory declaration, then all they need to do is ask.

UPDATE: October 2008 - Unfortunately we are no longer able to offer this service.

Guidance on Blogging at a Conference

I've yet to go to a UK lawyers conference or event and find someone blogging about it. I guess that will start to change because "live blogging" i.e. reporting an event as it happens is fairly common practice amongst geeks, and where they go, others seem to follow.

I wondered about this while I was at a talk entitled "Identity Theft, Biometrics and Data Security" organised by the Society for Computers and Law's Privacy and Data Protection Interest Group Meeting. Actually, it was a lot more interesting than it sounds and I'll come back to the detail of the talk in another post.

One of the recurrent themes was the fact that we all have "digital identities" whether we like it or not. One lady objected to this idea, and said that we wanted to remain "private". Of course, the simple answer it that it is already too late, and that raises loads of ethical, moral and legal questions.

On a slightly more mundane level, I wondered how this lady would have felt if I had blogged the meeting and mentioned her by name - as I could easily have done. It also raises the question of whether I should have asked her if I could name her, or just gone ahead and reported her legitimate comments made at an open meeting.

For those who want to start blogging conferences, Josh Hallett has produced an excellent guide on his hyku blog.

Vanity Searching or What You Need to Know

Keeping track of what is being said about your business is becoming increasingly significant in a world of exloding content (blogs, message boards, social networking sites, customer review sites - to name but a few).

Matt Homan over at the [non] billable hour points to a great list of the 10 things all businesses should be monitoring:

1. Company name
2. Company URL
3. Public facing figures
4. Product names
5. Product URLs
6. The industry “hang outs”
7. Employee activity/blogs
8. Conversations
9. Brand image
10. Competitors

He even goes as far as to say that lawyers should be doing it for their clients, which is actually a very good idea.

The original article over on Pronet Advertising gives plenty of links and detail for those wanting to find out more. And David Sifry of Technorati points to his own vanity search here.

Who Owns the Content?

There's an intriguing article in today's Guardian Technology about the impact and implications of the terms and conditions ("T's and C's") governing websites like YouTube, MySpace and MTV Flux, all of which rely on users submitting content to them. The big question is: Who owns the content?

According to Kate Bulkley, the writer of the piece:

For the average user, such sites make uploading content a breeze. They're less good at making terms and conditions (Ts & Cs), governing what you upload, transparent. Written by lawyers, they seem principally to protect big media's options.

The problem with Ts and Cs is that very few people read them, and it's only when there's a problem that they become an issue. Writing them in plain English helps and I think it would be worth looking at the way in which the terms for UGC (user generated content) sites are put together and looking at the "do's and don'ts" of website terms.

The Legal Risks of Blogging

There's a good article on some of the legal risks and how to deal with them, on a US blog called the Settle It Now Negotiation blog.

Written by Jacqueline Klosek of Goodwin Procter LLP she assesses the risks and liabilities of blogging and makes the following (good) points:

1. Develop and implement policies establishing the terms and conditions under which employees will be permitted to blog.
2. Provide training as a component of the blogging policy.
3. Appoint a corporate representative to field employee blogging questions.
4. Inform employees of the consequences of violating blogging policies.
5. Develop and implement a system for monitoring the company's blogs for content that violates terms of use, employee policies or applicable laws.
6. Ensure that any personal information gathered via company blogs is handled in compliance with applicable privacy laws and company privacy policies.
7. Develop and implement a policy for retaining and archiving corporate blog content.

(Thanks to Justin at www.human-law.co.uk)

A Dig at Lawyers

Dr Ian Brown has a good dig at a load of copyright lawyers:

What I found interesting was that (a) a room full of copyright lawyers had very little idea of the very many technical problems with TPMs and (b) those that did were busy thinking up new crackpot schemes to "protect" their clients' 20th-century business models.

The current favourite seems to be that ISPs should be forced to monitor all exchanges of data and charge customers when a copyright work is spotted. When I asked how the spread of encryption could possibly be compatible with this scheme, they airily replied that only paedophiles use that technology and we would all be better off if it was banned. They obviously don't know that the US government already tried extremely hard to do this over about 25 years, and failed.

Given the ever-increasing focus on securing critical national infrastructures, anyone who hopes that governments will go down that road again is living in fantasy land. To think that companies are being charged several hundred pounds an hour for this type of advice…

I've got a lot of time for Ian Brown, who knows what he is talking about. I suspect that most of the lawyers know more than they let on.  Their job is to represent their clients interests, not necessarily help create the new commercial paradigm for the creative content industries (music, film, media etc).

I can imagine that lawyers acting for ISPs would be more than happy to draft the sort of letters that Tiscali sent to the BPIearlier this year. The idea that ISPs can, or even should,  "police" content is absurd. DRM (digital rights management)  is fraught with problems, and all the creative industries appear to be struggling to come to terms with the issues. Blaming the lawyers though is the easy option. Coming up with working solutions to the problems seems to be a lot, lot harder.

Law firms and Hairdressers

I couldn't really get my head around the story about the firm of solicitors asking hairdressers to refer clients to it for a £75 referral fee.  My initial view was that it seemed like a pretty good idea, but then the press got hold of it, making the suggestion that confidences were going to be breached and now the scheme has been withdrawn. It serves as an interesting reminder that there is no easy way to acquiring new clients, and the days of the old high-street practice serving everyones needs are long gone.

Attracting new clients to law firms is challenging. Trethowans, a firm in Southampton, decided that it would be a good idea to advertise its family law department in local businesses.

According to the firm's marketing director Bryn Hughes

Businessess (estate agents, nail bars, hair salons, chiropractors and physiotherapists) were approached to obtain permission to display freephone cards on their premises.  It was entirely at the discretion of the business owner, whether they put them on general display or chose to give a card directly to a client, if they felt it was appropriate.  The decision then lay entirely with the individual, whether or not to telephone Trethowans (using the frephone number on the card) to arrange a free initial interview to discuss their personal circumstances.

So far so good. Except that it all went wrong when the media got hold of the story and started quoting some of these business owners who felt they were being asked to divulge confidential information and Trethowans were forced into retreat. The beleaguered Mr Hughes again (on the firm's website):

Our family law referral scheme has received media attention over the past week.

Regrettably, the scheme has been completely misunderstood by some businesses, who it appears believed that we were asking them to divulge confidential information about their clients to Trethowans, and also to pass on their contact details, in order that we could telephone their clients directly to sell them family law advice. This of course was never the intention of the scheme and neither was it designed to operate in this way.

Everyone at Trethowans has been horrified by the misrepresentation of the scheme in the media. In light of the response this has generated, we have decided not to proceed with the scheme. No potential clients have used the freephone cards to contact us and no referral payments have been made.

Hunting around for more information about this I came across a comment from Alastair Moyes of  Marketlaw.co.uk who made the point:

The coverage raises the awareness of marketing and promotions as an essential part of the business of running a solicitors firm.  Referrals are acknowledged as the most common way solicitors receive new instructions and any way of encouraging those referrers will help develop new business. 

We don't do family law here at LloydLaw, so I can't see us following Trethowans' tack, although we did receive a letter the other day from another firm offering us a referral fee for any family law work we passed on.  Solicitors are no different to any other business. They need new clients all the time and paying for referrals will become increasingly standard.

Just Don't Do It

The news this week that Nike has settled with Hackney council for £300,000 after "inadvertently" ripping off the Hackney brand is a stark reminder that even the biggest, most brand-aware businesses still make mistakes.

The sportswear giant had produced a range of clothing bearing the London borough's name, and an exact replica of the council's logo. I  assume that it was created in the US, but I find it somewhat hard to believe that the use was "inadvertent". Still, I suspect that settling the dispute before court proceedings were issued had its advantages, and it enabled Nike to be able to put their own "spin" on the outcome.

What's interesting about this dispute, is how the parties agreed on £300,000 as the appropriate level of compensation. According to the council, the settlement was based on a licensing royalty arrangement on sales of the range, which included trainers, footballs and t-shirts. Of course, the settlement also included an apology, and payment in full of Hackney's legal costs. [Hackney was represented by Marks & Clerk Solicitors].

The assessment of damages in intellectual property infringement actions is in a slight state of flux following amendments made by the Intellectual Property (Enforcement etc.) Regulations 2006 which came into force on 29 April 2006 although this settlement appears to be consistent.

The Regulations provide that "where an infringer of an intellectual propery right knew, or had reasonable grounds to know that he engaged in infringing activity, the damages awarded shall be equal to the actual prejudice the claimant suffered as a result of the infringement".

In particular, a court is expected to take into account:

(a) the negative economic consequences (including any lost profits) suffered by the claimant and any unfair profits made by the infringer; and

(b) elements other than economic factors, including the moral prejudice caused to the claimant by the infringement.

The Regulations go on to say that where appropriate, damages may be awarded on the basis of the royalties or fees which would have been due had the defendant obtained a licence. 

Presumably Hackney were prepared to accept Nike's claim that it was indvertent and so there was no "moral prejudice" - or certainly not enough to make it worth going to court over, and we can also assume that £300,000 (all of which is being put towards the development of youth sport in the borough) is a fair reflection of the sales and the sort of figure Hackney might have agreed, if Nike had asked for a licence.

On a final note, Hackney hadn't actually registered its trade mark, although it had been using the mark since the 1960's. As Gregor Grant, the solicitor at Marks and Clerk who handled the case commented:

This case shows that it really is worthwhile for the public sector to ensure its intellectual property rights are established.  In this case Hackney owned the copyright in their logo, which dates back to the 1960s.  It was not registered as a trade mark. Non-trading organisations have not normally been active in protecting logos and other insignia as trade marks, but this might change.  Universities and similar institutions regards their logos as brands, and there is no reason why this should not also apply to governmental organisations.