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On the subject of Legal and Financial

Money Super Market Comparison engine

Mike Sparkes Mike Sparkes

March 20th, 2014.

Google Goes After Brand Names With Its Comparison Engine.

 

Again, Google gets the backs up of companies investing heavily in its services, though this time it’s not through an algorithm update or a change in the webmaster guidelines. Rather, it’s their comparison feature that has sandbagged the major comparison shopping firms.

If you’re involved in Travel, Finance or Insurance, you need to be aware that Google is interested in controlling these verticals within its own search engine, as much as possible. The opportunity for profit is huge as is the tonnes of valuable data that will be collected.

The Google comparison feature was soon released after they acquired comparison site “Beat That Quote” back in 2011. The feature meant that Google would appear for generic competitive industry related keywords, such as car insurance or mortgages. This is still the case today.

 

Google Comparison Engine

This move was understandable, Google’s desire to keep growing and monopolising the internet means that creations such as this are going to be more and more common. At the end of the day, they’ve reach mass market penetration in the UK, the only way to please the shareholders is to diversify into other lucrative industries.

Brand Bidding is Bad, Unless You’re Google

However, it looks like one rule for everyone else except Google, who haven’t been following their own rules again. Their position as overlords of the internet has entitled them to take advantage of the very companies that are paying them remarkable figures in Google adwords advertisement and other services.

Scratching your head?

Google’s comparison engine has gone a step further than simply appearing for the generic big industry keywords.

A branded search for anyone of the top comparison website rivals will return this:

 

Money Super Market Brand Bidding

They’ve effectively done MoneySuperMarket’s job for them, how thoughtful…

 

Google's comparison search, Sponsored Message

Despite the fact that MoneySuperMarket will probably be paying incredible sums of money to raise awareness of their brand name, all of which supports their offline marketing efforts, which includes extensive above the line media adverts. Their efforts are being sabotaged by Google’s “Sponsored” comparison engine which is essentially hijacking users away from the MoneySuperMarket website. Whilst doing this they’re also trying to force the users to adopt Google’s own engine instead, which features a list of alternative competitor insurance companies.

In a nutshell Google’s comparison engine seems to be a glorified affiliate site.

You thought Google only favoured the big brands…

So what do the big comparison sites do, how would you react? It would appear that they just have to accept it. Thanks Mike… ground breaking revelation there.

This isn’t the first time, nor will it be the last time that Google have tried to force users to use their platform over a potential rivals, this should sound familiar? Google are being hypocritical of their own guidelines and company mission statement.

We’ve all heard that providing a good user experience and unique authoritative content are what Google rewards the most, which makes perfect sense. So why when companies such as MoneySuperMarket provide awesome content, such as this, are they being pushed further down the SERPS real estate?

Kevin Gibbons recently wrote a great piece on how to beat Google in a vertical search, making the point that relying on Google is always a risky game, it’s your biggest competitor. It has your mindshare whenever want to find something or buy a product.

Kevin, goes onto to give great examples of how MoneySuperMarket are beating Google hand’s down by ultimately using their marketing as an acquisition channel which rewards them for coming back. They’re running newsletters, social media, blog, apps, SEO and remarketing to such an effect that a Google search is becoming more and more irrelevant.

And if all that doesn’t work, well at least they have Snoop Dog.

 

Snoop Dog Money Super Market

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Matt

February 13th, 2014.

(Another) New EU Directive: Will it Inhibit or Enhance Online UK Retail?

A new EU directive has made its way into UK law.

The purpose of this new legislation is to both increase customer rights when buying online, and make expectations of customers more consistent across the European Union, thereby increasing cross-border trade through online stores.

We all remember the cookie fiasco of 2011, the last major attempt at enhancing the rights of the internet user. The UK government not only failed to enforce it, but even to comply to their own law. Due to strong resistance and powerful arguments against the law, it was revoked in 2013.

Will this new push for user’s rights follow a similar fate?

10 Second Summary

To make customer rights more uniform across Europe via:

  • Increased minimum cancellation period

  • Obligatory refunds within this period

To increase customer rights by:

  • Forbidding auto-ticked checkboxes

  • Using clearer, less attractive language on the ‘Buy’ button

There are many other changes to be made in response to this directive, but the above represent the parts of the legislation most likely to affect online retailers in a big way.

When Will This Affect Us?

The law is set to come into effect in the UK on the 13th of June, 2014.

Some things are likely to need changing before this date rolls around. We’ll need to retrain our staff in regards to dealing with returns, cancellations, refunds, and customer service in general.

Terms and conditions will also be affected, as well as the code responsible for auto-ticked checkboxes, and the text for the ‘Buy Now’ button is going to get a little uglier, I’m afraid. Let’s get into specifics.

Shall I Click “Buy”, or “Order With Obligation To Pay”?

agt-buy-buttonWords like “buy”, “confirm” or “place order” are now apparently too vague and open to interpretation to describe the button that leads to payment.

“Order with obligation to pay” is the phrase our customers now have to read and agree to before buying from us.

One of the biggest arguments against the old cookie law was that it put other countries, particularly the US, at a significant advantage, since their websites didn’t include pop-ups which, to those that don’t know what cookies are, looked like a request to infringe on their privacy.

The buy button thankfully occurs a lot further in the buying process, and is likely to have less of an impact.

Sales may be lost, however, and they are not sales that depended on people not knowing what they were clicking on. It’s a wonder why this was deemed as a necessary change.

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Credit: Chris Lake @Lakey

If the cookie law was a reaction against the thought of websites tracking our movements, is the buy button law a reaction against the thought of the 1-Click button?

We can deviate a little from their suggested script, as long as it remains explicitly clear that by clicking the button they are entering into a contractual agreement that ends in payment. Clearly, it’s up to us to interpret this detail to a degree.

Whatever the case, the change to buy buttons is just one part of this legislation.

Say Goodbye to the Presumptuous Tick Box

When a page loads, any checkboxes that relate to a add-on service must be un-ticked.

checkboxFrom July onwards, if you want your customers to sign up to your newsletter or add some extra insurance cover to their purchase, you’ll have to make the prospect compelling enough to have them tick it themselves.

Most customers have now been trained through experience to look for checkboxes they have to opt out of before clicking confirm. No, it doesn’t build goodwill for a brand, but it still goes on. You can see how this is in the same line of thought as the buy button changes, the difference being that these checkbox changes are likely to be a genuine improvement in the buying experience.

Adopt a German Attitude Towards Refunds

The “right to cancel period” will be expanded from a minimum of 7 working days to 14.

This is to align the rights of customers buying from a UK retailer with those of customers buying from other EU countries, such as Germany, who already enforce a 14 day right to cancel period.

Refunds for products will be obligatory within the right to cancel period, on the condition that the product is returned with its value undiminished by carelessness. Even if the customer has cancelled, the retailer can withhold refund payment until the product is properly returned, which most of us will agree is fair enough.

It seems that these changes to refund policies are weighted to be fair to both parties, but they will require some attention be paid to our terms and conditions before enforcement comes into play in July.

The benefit is a consistent customer experience across Europe, which should result in more cross-trade online, and a wider reach for small UK retailers that don’t have the budget to expand operations overseas in a physical capacity.

How Do We Protect Ourselves from Prosecution?

If you’re hoping for a similarly lax enforcement practice as we saw with the cookie law, you’re in good company. Perhaps a revision to the surprising buy button policy will occur in time, but until then, any UK business owner who acquires sales online will be at risk of prosecution without making the necessary changes.

You can read the official document here (PDF), which includes model cancellation forms and detailed descriptions of policies we’ve covered here.

The most visible loose ends we will need to tie up are the buy buttons at the end of our buying sequences, the add-on checkboxes that appear at the same stage, the statements made in our terms and conditions (even if it is only the enforcers who will read them), and the wording of any relevant forms available to our customers.

Be sure to educate yourselves and your staff on all the relevant changes. There are many others included in the document above, including changes to content classification, and to information available through customer support helplines.

 

lion

Joe Joe

April 18th, 2013.

We’re Being Sued – For Linking To Shopzilla

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(image)

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If you like crime stories, you’ll love this. ‘True Crime: Hammersmith’ is the story of a deranged criminal organisation (Datadial) and the ensuing legal battle to stop it.

Chapter 1. The Best Intentions.

On August 17th, 2010; the world was rocked to its core when the Datadial blog posted an article titled ‘Increase Conversion rates – advanced techniques’. Of course, it all seemed fairly innocuous. A simple review of tools to help increase conversion rates on your website.  The article named several companies and their websites and praised them for their techniques. Indeed, one man even thanked Datadial for the mention! Eames2 Clearly Mr. Eames didn’t realise that he was just a pawn in one man’s cruel game; the likes of which the legal world has never seen. …until now.

 

Chapter 2. The Worst Intentions 17th April 2013. Almost three years later. An email is sent from Fox Williams LLP to the author of the article and owner of the website, Mr. Robert Faulkner. The email was sent on behalf of Fox Williams LLP’s client, Shopzilla.co.uk. You’ve probably heard of Shopzilla. According to their Trade mark List of Goods and Services (which was supplied in the email) they specialise in: ‘Promoting sale of goods and services of others; Internet consumer comparison shopping services; providing ratings and reviews of businesses and products and services for use by consumers; providing databases containing commercial information relating to products and merchants’. As it transpires, Shopzilla had been mentioned in Datadial’s article all those years ago. Right at the bottom. As an honourable mention, as recognition for their online service. excerp1t Shopzilla had finally gotten wind of the article, after all that time; and they did the only thing any self-respecting company would do. They contacted their solicitors to have the link removed.   Chapter 3. Motives Why did they want the link removed? Why indeed. Allow me to reprint the grounds of the legal action and analyse each point in-depth:

  1. Trade Mark infringement
The Infringing Website contains a link to our client’s website, http://www.shopzilla.co.uk, creating an unauthorised association with our client and their Trade Mark. Your use of the link on the Infringing Website is:
  • Causing detriment to the distinctive character of the Trade Mark;
  • Causing detriment to the reputation of the Trade Mark by creating an undesirable association with the Infringing Website; and
  • Taking unfair advantage of the goodwill attached to the Trade Mark.
Our client is entitled, at its own election, to damages or an account of profits for use of the Trade Mark.
 

Now… as I’ve mentioned, Shopzilla is legally defined as one that “provides ratings and reviews of businesses and products and services for use by consumers”. It sets itself up as one. That is the legal definition of Shopzilla. If acknowledging this definition is ‘detrimental to the distinctive character of the trademark’ and it creates an ‘undesirable association’ I daresay they might need to have a brand re-think. I wasn’t sure exactly what ‘Goodwill attached to the Trade Mark’ meant. Suing for a mention of your brand doesn’t seem like an act of goodwill to me. I have since looked up ‘Goodwill’ in legal terms and it pretty much means ‘the right to do business without direct competition’.

Basically not stealing other people’s business. (If anyone has a better definition, I’d welcome it in the comments). I’m not quite sure how praising a company prevents it making profits; but I’m fairly sure Datadial didn’t steal any of their market, or any other products that Shopzilla recommends on its site.

As requested, I’ll provide an account of the profits Datadial made through the use of Shopzilla’s name alone:

£0, 000, 000, 000, 000, 000, 000, 000

We’ll happily share in these profits with Shopzilla. It’s only fair.      

2. Passing off [Fox William’s LLP’s] client’s goodwill Our client has invested significant time and money in developing the Shopzilla® brand making it instantly recognisable amongst the public as a trustworthy and reputable online comparison shopping engine. It is highly likely that the average consumer will be confused, believing that our client is in some manner connected with the Infringing Website, either through ownership and operation or through a commercial relationship or endorsement with the operator of the Infringing Website. Such connection is causing our client damage. As such, your use of Shopzilla® in this way constitutes passing off.

I had to open my legal dictionary again for this one. Basically ‘Passing off’ means creating an undue association between two parties, specifically one claiming undue association with the goods sold by another company. I’d like to state unequivocally that Datadial’s use of a link congratulating Shopzilla® on its use of product comparison is not an attempt to gain an association with Shopzilla® or any products sold or compared on Shopzilla®’s website. It would be interesting to see if Shopzilla® could provide proof that Datadial has stolen any of its business.      

3. Copyright Infringement The use of the Infringing Website of text and graphics taken from our client’s websites is an infringement of our client’s copyright. You have copies and communicated the copyrighted work to the public through the Infringing Website. The use of the copyrighted work has occurred without the consent of our client, the copyright owner. We put you on notice that any continued use of our client’s text and/or graphics (in whole or in part) on the Infringing Website will constitute and infringement of our client’s copyright. This is without prejudice to our client’s position that you already have the requisite knowledge to establish such liability.

I was totally on-board until the last sentence. Even my module in Forensic Linguistics couldn’t have prepared me for that. I guess they’re suggesting that because Shopzilla® is a well-known website we should know that everything on their site belongs to them.

If Fox Williams LLP is reading this, I would recommend visiting The Plain English Campaign’s site. I’ve provided a link so you know what I’m talking about. . http://www.plainenglish.co.uk/ I hope they don’t sue me…

Legalese notwithstanding, Datadial hasn’t stolen any content from Shopzilla®. Neither text nor images have been used. Shopzilla®’s name wasn’t even used. It was a link via a URL, and you can’t copyright a URL. And even if you could (WHICH YOU CAN’T) it was a mention in a review so it’s fair use! What’s even more confusing is that Shopzilla appears to have sold out on Point 6 of its own philosophy:

‘Information is Empowering: Share it Wherever Possible’.

 screenshots   Chapter 4. Reasons. So far as I can tell there are no legal grounds for removing a hyperlink. We have been advised by Fox Williams to seek legal advice, so I am hoping the readers of this article can offer some help. Fox Williams have not mentioned that this is a link clean-up operation; and surely they would have gone down the normal route if that was the case. If they’d sent us a polite email asking for the link removal, we would have explained that since we have a reasonably high domain authority of 50+ the link in question would likely have little effect on their rankings and it’s 3 years old anyway so any effect would have been discounted anyway…etc As a precautionary measure we have taken down the link, as requested. If anyone has any thoughts on why Shopzilla wanted this link removed so badly, please share them here though keep it legal!   Chapter 5. A riposte. Datadial is not a law-firm, but it is an internet marketing agency. We know how to use Google. Upon receiving the email, we took to the web to find out all we could about the legalities of Hyperlinking. Here are some insights into the subject as documented by Out-Law.com.

  • “…hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work.”  (source)
  • “Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation” (source)
  • “every internet user enjoys access to the work simply by learning the uniform resource locator (URL) the court held. The hyperlink technique obviates the need to enter the URL manually and merely provides an easier and more convenient way to use the internet.” (source)
  • “Kranten.com successfully argued that such deep linking to other sites is a widespread and commonly accepted practice on the internet and because, as in UK law, news articles can be copied for the purpose of reporting current events, provided there is sufficient acknowledgement.” (source)

The author of the original article has never been in trouble with the law. He’s an honest man who does business by the book. You can imagine his upset when he received the original letter. Faced with the fear that he would spend the rest of his life in prison, he considered transfering all of the company’s money to The Battersea Cat’s Home, and move to a Tibetan Monastery. However, he quickly rationalised the situation and sat down on his sofa with a glass of wine and a Twix. Since Shopzilla® and its lawyers are solely responsible for causing an undue amount of stress, it only seems fair that they reimburse him for the glass of wine and Twix. Twix: £0.80 Glass of wine: £2.40

– Update:

Chapter 5. Prologue.

Shopzilla’s VP has come forward to apologise for the misunderstanding. The apology is in the comments below. They acknowledged that it was a mistake and said they were sorry it happened. I guess we’re not being sued anymore!

–Update 2:

We just received a courier delivery…

before1

I wonder what it is…

after1

Well, how about that! A bottle of Red Wine and a box of Twixes. Thanks very much Shopzilla!

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Matt

March 15th, 2012.

The New EU Cookie Laws – What You NEED To Know – A Round-Up

What Is The Law?

The new directive is a piece of European Union legislation that has been adopted in the UK. The government have now updated the Privacy and Electronic Communications Regulations, which now means that the EU directive is now UK law.

This law requires all website owners to get consent from their website visitors before they can store or retrieve any information on their devices including computers, tablets and mobile devices.

The ICO Updated Guidance For Website Owners

When Does The Law Come Into Force?

The new law comes into force on 26th May 2012. A 1 year grace period was given from May 2011.

What Are Cookies?

Cookies are files that are stored on your computer or device that store information about the user, that websites can use and retrieve at a later date. This may be information such as personalisation options, search history, purchase history, log-in information, and browsing history.

What Are Cookies? – The BBC

Does My Site Use Them?

Almost certainly yes. 92% of UK websites currently use cookies in some capacity, and the vast majority are breaking the law. If you’re using website analytics software like Google Analytics, advertising networks, or e Commerce software then the overwhelming majority of these will be using cookies to store user information.

How Can I Comply?

In order to comply with the legislation your website must obtain explicit clarification before you can store information about them on their devices. An exemption has been made for cookies that are deemed to be vital to the operation of a website. Advertising, analytics and personalisation functions are not exempt however.

Must Try Harder On Cookie Compliance Say ICO – ICO News Release

Key points set out in the amended cookies advice include:

  • More detail on what is meant by consent. The advice says ‘consent must involve some form of communication where an individual knowingly indicates their acceptance.’
  • The guidance explains that cookies used for online shopping baskets and ones that help keep user data safe are likely to be exempt from complying with the rules.
  • However, cookies used for most other purposes including analytical, first and third party advertising, and ones that recognise when a user has returned to a website, will need to comply with the new rules.
  • Achieving compliance in relation to third party cookies is one of the most challenging areas. The ICO is working with other European data protection authorities and the industry to assist in addressing the complexities and finding the right answers.
  • The ICO will focus its regulatory efforts on the most intrusive cookies or where there is a clear privacy impact on individuals.

EU Cookie Law – 4 Examples Of Sites Already Implementing It – Malcolm Coles

EU Cookie Law, 3 Approaches To Compliance – EConsultancy

Cookie compliance: Econsultancy analyses the latest ICO guidance – EConsultancy

The Cookie Law And Google Analytics

For most non-e commerce website owners the biggest impact is going to be on sites using analytics packages such as Google Analytics. Google Analytics currently sets 4 automatic cookies.

Unfortunately there is no official statement from Google as yet.

Google Analytics EU Cookie Law – Cookielaw.org

Google Analytics and the EU Cookie Law compliance could vary from country to country within the 27 state member areas. The more likely cookie law analytics solution will come via modification of the current Google analytics code, and/or an add-on, special dispensation from the requisite ICO office in that country or a browser solution through Google Chrome for instance. The UKICO office has already published information on using cookies.In time, Google might ask site owners to update their privacy policy, browsers may be engineered to include a universal consent or opt out button, similar to Do-Not-Track (DNT). Admittedly anything is possible.

In the past the EU’s Privacy and Electronic Communications Directive applied to user data, and this was largely interpreted to relate to e-mail data storage. The  ‘EU cookie directive  builds on this – no surprise you might say in light of the huge increase of seller side platforms (SSP), demand side platforms (DSPs), retargeting, tracking, ad-optimization and real-time bidding and personalization.

Cookie Law – Anaylics Are Illegal, But We Won’t Prosecute You, Probably – Silktide

“Although the Information Commissioner cannot completely exclude the possibility of formal action in any area, it is highly unlikely that priority for any formal action would be given to focusing on uses of cookies where there is a low level of intrusiveness and risk of harm to individuals.”

“Provided clear information is given about their activities we are highly unlikely to prioritise first party cookies used only for analytical purposes in any consideration of regulatory action.”

Google Analytics and The New EU Privacy Law – Advanced Web Metrics

 

How Will Compliance Affect My Site?

There are some probable negative affects of complying with the new law.

  • You may see increased bounce rates from adding warnings to pages, most of your visitors probably won’t even know what a cookie is.
  • You will lose valuable analytics data
  • Website personalisation will be affected
  • Other marketing areas such as email marketing and use of advertising networks will be altered

How the EU Cookie Law Will Affect Email Marketing – Cite

82% of digital marketers think the EU cookie law is bad for the web – EConsultancy

Stupid EU cookie law will hand the advantage to the US, kill our startups stone dead – Techcrunch

What Will Happen If I Fail To Comply?

There is a maximum £500,000 fine  if a breach of the law has caused “substantial damage or substantial distress. It is worth noting that there is a clear distinction to be made between first party cookies set for your own site and third party cookies often used to track behaviour across multiple websites.

“There will not be a wave of knee-jerk formal enforcement action taken against people who are not yet compliant but trying to get there”. – ICO Blog

Ultimately the decision to the actions that you take in order to move towards full compliance has to be your own after reading all of the facts and making a reasonable risk assessment.

EU Cookie Law: UK Government ‘break’ the law they imposed – Code Blog

cookies

Martina Martina

February 29th, 2012.

New EU cookie laws – Will you be breaking them?

Those rascals in Europe have really done it this time.  They have dreamt up the most insane law that will render any complicated website practically unworkable.

Their intentions were probably honourable but as the law is a mess but they are happening and YOU DO NEED TO TAKE NOTICE.

The law comes in on May 26th 2012.

There is a £500,000 max fine for non compliance.


Caught with hand in cookie jar
                                                                                                     Image source


It”s all about cookies

Why do cookies always come with consequences? If it isn’t calories you’re trying to avoid it’s breaching someones privacy – you just can’t win!

What are cookies? In short they are a method for tracking what you “do” on a website and where you go afterwards, how you got there etc.   Most cookies are essential for a website to work.  Some admittedly are a bit suspect and it’s not entirely wrong to be doing something about them but the sledgehammer approachby the EU is not the solution we feel.

The new shiny piece of legislation is being enforced as a solution; a way to protect you from the prying eyes of the web owners.

We’re not going to rewrite all the great articles out there already so here are pointers to finding out more about the Cookie Law

Biting of more then they can chew?

Before you get collared by the EU police you can refer them to their own website which is used to announce the legislation and has been criticised for breaking the very same laws they intend to enforce as pointed out (and illustrated with pretty pictures) by the good folks at Code Blog here: “UK Government ‘break’ the law they imposed“.

So, to summarise: This legislation will apply to nearly everything on the web, will probably reinforce the much dreaded “pop-up” and seems to be an overall nuisance.

Undoubtledly it will affect the big boys first.  They, at the moment, are just playing a waiting game to see what everyone else does.  Noone it seems is going to voluntarily prevent people using their website until the user agrees to their cookie policy.

In conclusion, you can choose to do the following:

  • Implement the new functionality to comply with the law ASAP
  • Delay the implementation as long as possible
  • Ignore the law

What do you think?

 

 

Adam Adam

December 2nd, 2009.

Domain Legality & Appeal: Oasis Case Study

A few weeks ago I had an interesting discussion with a few attendees to one of our online marketing workshops. The workshops are designed to give small business owners guidance in what they can be doing to improve their own marketing campaigns with advice on link building, creating content and how they could be using social media to promote their sites.

One particular debate arose on the legality of competitors squatting on variations of their branded domain names, and offering up the domain name for extortionate prices. I did a little research and dugg our the Oasis case study from earlier in the year:

credit:perspicacious.co.uk

credit:perspicacious.co.uk

Since 1991, the highstreet brand Oasis has been trading as a UK women’s clothing chain, and in 2006 the domain name oasis.co.uk was acquired by Mr. James Dale who parked the domain name and displayed sponsored links to women’s clothing sites using the DoubleClick advertising network through Google AdWords.

Earlier this year Oasis challenged the registration of the domain oasis.co.uk, stating that the domain took unfair advantage of the company brand and trademark, taking their appeal to Nominet. Under Nominet’s Dispute Resolution Service, the initial case had been won by Oasis, and initially decided that the domain should be transferred to Oasis.

However this was no ordinary Nominet recovery case. Mr. Dale then came forward shortly thereafter to advise that the complaint had been mailed to his previous address, thus meaning he found out about the decision without having a chance to appear to do anything to fight it.

Mr. Dale had failed to update the Whois registration information after changing both physical and email addresses, and only found out about the decision after a friend contacting him to offer commiserations on loosing such a valuable domain. Mr. Dale was able to appeal against the decision, stating that Nominet had his correct details from other correspondence and asked that this violation was overlooked. He was allowed to file an appeal, although the DRS appeal to a three person panel would cost him £3000.

In Mr. Dale’s response to the complaint, the panel allowed the submission of new evidence, which was not their normal practice. However, due to the fact that his non-appearance at the initial hearing was due to circumstances of notification rather than just a basic failure to appear, they felt that the fee for filing the appeal was punishment enough. Thus they allowed the new evidence in the interest of true justice, rather than depriving him of the domain in an unjust fashion. By this time the appeal panel had in essence already found in favor of Mr. Dale based on the merits of the case.

Mr. Dale informed the panel that when he spent £4000 to purchase the Oasis domain name he had no idea that it had been a domain related to a women’s clothes shop. He had no interest in such a business and wanted to use the Oasis domain for a financial services or bingo website. Mr. Dale then produced proof of discussions that had taken place in which he could prove that the domain was intended for financial services. These kinds of claims are often viewed by dispute domain panels with much skepticism, but they could not dispute the proof provided by Dale. Combined with the fact that Oasis was a common English word, the panel accepted Mr. Dale’s argument that he did not wish to target Oasis with the registration of the domain and thus the acquisition of the domain could not be considered an abusive registration.

Due to other factors, however, the case would not end here. Unlike the UDRP, under the DRS abusive use later on is sufficient, even in cases where the domain was actually acquired in a genuine fashion. The question that then came about was if it was abusive to use the domain for sponsored links directing to women’s clothing websites. Under Nominet’s policy, parking pages are not abusive in and of themselves. The nature of the domain, it’s links, and the ultimate responsibility for the domain by the registrant must all be considered by the panel.

Since some parking pages depend on specifications set by the owner while others have content that is generated automatically, the appeal panel found it would be dangerous to simply draw conclusions by looking at parking pages. Parties should explain in detail how their parking pages work, but in this case there was no explanation by either party.

It was then claimed by Mr. Dale that the parking page originally used contained only general links. To build his case against Oasis, Dale produced a statement from the parking company. The statement suggested an uncommon situation of how the women’s clothing links appeared on the domain’s parking page. It seemed that Oasis was using the domain name of “oasis.co.uk”, which was not owned by Oasis, as a keyword in their online marketing campaign. This in turn meant they would be targeting users specifically searching for the domain owned by Mr. Dale. Although Dale’s claim was short and did not provide much detail, the panel thought it was something that should be considered.

Oasis’ dismissal of the claim as “fanciful, unproven, and bizarre” did not satisfy the panel, as there was no statement provided by Oasis that it hadn’t used the keyword “oasis.co.uk” in their marketing efforts.

Since this claim was brought up by Mr. Dale and Oasis didn’t seem to have a valid defense, the panel then decided to check the Oasis website out for themselves. Upon inspection of the Oasis website, it was found that the keyword “oasis.co.uk” was indeed among the keywords being used to drive traffic to their own website.

What turns a genuinely acquired domain into an abusively used one can be assessed by Nominet panels by using the abusive acquisition or abusive use test provided under DRS. The normal approach to this situation has been that liability by the registrant is only present if they actively exploited their position by making reference to the trademark. The panel backed up Mr. Dale’s claim that it was the action’s of Oasis themselves which led to women’s fashion links appearing on the domain oasis.co.uk. Oasis lost it’s appeal as it was proven that not only did Dale not actively exploit his position, but the complaint that Oasis had filed was actually caused by their own behaviour.

While this may have looked like a good case for Oasis, it shows that assuming any DRS case is a “pushover” is a risky assumption. Detailed evidence must be provided explaining how the parking pages of any parties domain work. The content of a domain parking page cannot be assumed to be the responsibility of the registrant, and information from the parking company itself could be a necessity.

My point is this: if you can prove domainers are holding a variation of your domain to capitalise on your brand or trademarks then you probably have a strong case for appeal. If however the domainer can find any excuse (such as not updating their whois record after moving house!), they can drag the process out and duck out if they have some form of proof the domain was acquired for any other purpose.

Also trademark owners need to be aware that it may not be in their best interest to include domain names that they don’t own in their marketing strategy!

Further reading: Is It Me Or Is Everyone Else Stupid, Perspicacious, Ashurst

Rob

June 21st, 2009.

The most boring blog post ever?

Yes, this might indeed be the most boring blog post ever but it does have a point to make.

I recently copied the terms and conditions from www.lovefilm.com into a word document.  Lo and behold, Word then revealed all the tracked changes that had been edited, presumably by Lovefilm’s lawyers.

Delightfully we are given an insight into the weasel legal world of small print; for example see how they have subtly shifted any responsibility for lost CD’s onto the member, sorry subscriber, rather than Lovefilm.

None of this is overly important, just a bit amusing but it also reveals the perils of copying and pasting from word into HTML and why you should always use a plain text editor instead.

If you’re interested, and if you are, do you have a life? – I was copying the text so that I could work out how they do their neat subscription model so that I could emulate the concept for one of our own projects.

Here are a couple of excerpts copied from http://www.lovefilm.com/info/terms_and_conditions.html

End

Rob

June 21st, 2009.

Boring but important – Changes to “place of supply” for VAT

VAT – are you preparing for new ‘place of supply’ rules?
Major changes in VAT legislation are on the way and it is essential that all businesses are prepared in advance to meet the requirements and avoid any possible financial penalties.

From 1st January 2010 there will be a change to the basic rule regarding the place of supply of services. This is the rule which identifies the country where services are deemed to have been ‘supplied’. Currently, if a supplier has established its business in the UK, then the place of supply will be deemed to be the UK and any services charged for will be subject to UK VAT. There are, however, numerous exceptions to this rule. Establishing whether a service falls under one of the exceptions – and if so, which one – constitutes a major headache for businesses.

The new basic rule states that if the recipient is a business customer then the place of supply is the country where the recipient belongs. Therefore, when the new rule applies, if a UK business supplies training services to a business customer in Spain and delivers the training in France then the place of supply will be Spain and the reverse charge will apply. The existing rules dictate that the place of supply is France, with the result that the UK business may need to register in France.

The new basic rule also states that if the recipient is not a business customer then the place of supply is the country where the supplier belongs.

As is now the case, there will be some exceptions, but these exceptions are in many cases different from those currently in force. It will be important to ascertain just how your business will be affected.

The changes may affect businesses which receive services from abroad. Such businesses may already account for VAT using the reverse charge mechanism, but may in future have to do this in situations where the reverse charge currently does not apply.

Another significant change, which is being introduced as an EU anti-fraud measure, relates to EC Sales Lists. Businesses supplying services to commercial customers in other EU countries will be affected. Currently, EC Sales Lists are required only for supplies of goods. Although this comes into force on 1st January 2010 you should be preparing now to collect the necessary data.

 The above was copied from an email sent to me by UK Training (Worldwide) Limited

Registered Office
4/5 The Mayflower,
Liverpool Road,
Formby,
L37 6BU.

Tel: +44 (0)1704 878988
Fax: +44 (0)1704 832124
http://www.uktrainingworldwide.com/index.asp

I have no association with them but the information is important to digest for anyone trading online.

As ever Datadial are here to assist you in implementing your e-commerce sites to the specification you desire.

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