Wright, Johnston & Mackenzie Solicitors

German law against “facebooking” prospective employees

A draft law recently approved in Germany is set to tackle the practice of employers vetting prospective employees on social networking sites such as Facebook.

More generally the draft legislation seeks to balance individuals’ privacy with the legitimate interests of potential employers. Under the new law employers would be prohibited from conducting certain types of internet searches, if the individual’s right to privacy outweighs their researching endeavours. The draft specifically states that whilst conducting searches on networks used for professional reasons such as LinkedIn may be permissible, searching other social networking sites like Facebook is not.

The position in the UK is that employers should be mindful of individuals’ rights to privacy and in respect of their personal data, and in particular the rights afforded under the Data Protection Act 1998.

If you plan to utilise internet searches to research any individual in a way that might breach their privacy, then the simplest way to ensure you don’t fall foul of this legislation is to obtain their consent to this or at the very least inform prospective employees that this kind of search will form part of the recruitment process.

For more information in relation to any aspect of data protection and privacy, or your obligations in relation to researching candidates, please contact a member of the iTech team.

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American firms breached Umbro licences – says Court of Appeal

The English Court of Appeal recently ruled that two US firms were guilty of breaching the terms of the licences granted to them by UK sports manufacturer Umbro.

Umbro had licensed one company the right to make and sell “on field” football kit (that which would be likely to be used whilst playing the game) and another company was granted the right to manufacture “off field” kit such as that worn by fans or spectators.

The latter licensee, Hudson Bay, sued Umbro claiming that it had allowed the other US company to stray into manufacturing “off field” kit, over which it should have had territorial exclusivity. In response Umbro led evidence that Hudson Bay had similarly gone beyond the terms of their licence in way that encroached upon the “on field” licence.

The crux of the distinction between the garments was the presence or otherwise of pockets, with “on field” clothing generally understood by all involved to have none. This distinction was originally recognised by the High Court and was then upheld by the Court of Appeal, as was the decision on the breaches of the respective licences.

An executive of a US subsidiary of Umbro had advised Hudson Bay that it could make the on-field kit. However whilst the Court of Appeal recognised the ostensible authority for the executive to make certain authorisations in relation to the licence agreement, any deviation from the terms of licence were it said, a matter for Umbro in the UK. In effect, Hudson Bay had obtained permission from the wrong Umbro company.

Strategic licensing can make a big difference to the return you will see on your intellectual property. For advice on licensing or otherwise exploiting or protecting your intellectual property, contact a member of the iTech team.

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£2.3m fine for Zurich following data breach

Zurich Insurance has been fined £2.3 million by the Financial Services Authority (FSA) following the loss of a database containing tens of thousands of customers’ personal data.

Following investigation the FSA ruled that the security measures put in place by Zurich in relation to the data were insufficient, and imposed what it says is the largest fine to date to be applied to a single organisation.

Zurich had outsourced the processing of the customer data to South Africa, where it was then subcontracted to a third party unbeknown to Zurich in the UK. The data, which included customers’ credit card and bank account information, was subsequently lost in transit.

The fine was levied after the FSA found Zurich in breach of the FSA’s Principles for Business, and its Senior Management Arrangements Systems and Controls sourcebook. At the heart of the breaches were inadequate risk assessments and communication within Zurich in relation to the outsourcing arrangements, and a failure to put adequate security measures in place to protect the data.

In failing to safeguard the customer data Zurich not only fell foul of the FSA guidelines but also data protection law. Following the loss of the data Zurich notified the Information Commissioner’s Office and subsequently signed an undertaking in relation to its breach of the Data Protection Act 1998.

For more information in relation to your obligations when handling personal data, and on the Data Protection Act, contact a member of the iTech team.

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Gaming giant loses bid for Bioshock.com

Gaming giant Two-Take Interactive has lost its bid to wrestle the internet domain name Bioshock.com from advertising company Name Administration Inc.

Name Administration is the owner of thousands of domain names and makes money by advertising on these sites. The company displayed several adverts on the Bioshock.com website.

Two-Take is the maker of the BioShock video game and brought arbitration proceedings against Name Administration to force Name Administration to transfer the domain name Bioshock.com to them.

Name Administration make money every time a visitor views an advert on Bioshock.com. Two-Take claimed that the vast majority of visitors to the Bioshock.com website were expecting to reach the website of the BioShock video game. Two-Take therefore claimed that Name Administration was making money from Bioshock.com solely using the goodwill and value of the BioShock trade mark (which Two-Take own). As a result they argued that Name Administration had registered the domain name in “bad faith” and should transfer Bioshock.com to them.

Importantly, Two-Take did not register the BioShock trade mark until over a year after Name Administration had registered the domain name. As a result, Two-Take could not claim any prior trade mark rights to the domain name.

In its defence, Name Administration claimed that it had no knowledge of the BioShock game when it registered the name in 2004 (the game was released 2 months before Name Administration registered the domain name). They also pointed to the fact that they advertised a wide variety of products on the Bioshock.com website and various other companies used the Bioshock name - including Johnson & Johnson, maker of Johnson’s Baby Shampoo, who had released a “Bioshock skin cleanser”.

The WIPO found in favour of Name Administration on the basis that:

1. Name Administration had registered the domain name over a year before Two-Take registered the BioShock trade mark;
2. There was no formal legal link between Two-Take and the BioShock name until they registered the trade mark; and
3. Bioshock.com advertised goods other than the BioShock video game on the website.

As a result, Name Administration did not register the domain name in “bad faith” and did not have to transfer BioShock.com to Two-Take.

The case highlights the importance of registering trade marks and domain names as soon as or before a product is released. If Two-Take had registered the domain name and trade mark when the game was released, they would have avoided ultimately unsuccessful and expensive arbitration proceedings and be the owners of the BioShock domain name.

If you wish any assistance in protecting your products by registering domain names, trade marks or other intellectual property rights, please contact a member of the iTech team.

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Don’t send promotional emails to those who have opted-out!

Virgin Media have been censured by the Advertising Standards Authority (ASA) for sending a promotional email to an individual who had “opted-out” of receiving promotional emails. The ASA have banned Virgin from sending out the email again in its current format.

Under the CAP Code (which regulates advertising in the UK), companies must give individuals the opportunity to “opt-out” of receiving promotional emails in the future. The individual in question here had done so, but still received the promotional email from Virgin.

The email in question informed that customer that Virgin Mobile was now a part of Virgin Media. Crucially, the email also contained details of various offers and services which the individual could sign up to.

In their defence, Virgin claimed that the email was not a marketing communication, but was simply an announcement of new services which were available to the individual.

However, the ASA disagreed and held that sending the email to the individual breached Virgin’s obligation under the CAP Code to ensure that marketing emails are not sent to individuals who do not wish to receive them.

The case highlights the importance of ensuring that any promotional emails are only sent to those who wish to receive them. Such emails should also always contain an option for recipients to “opt-out” of receiving promotional emails in the future.

If you wish any further advice on advertising online and your obligations under the CAP Code, please contact a member of the iTech team.

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