Friday, 26 February 2016

Rights done wrong

A(nother) cyber libertarianism backlash presents a timely reminder of understanding the consequences before unleashing the dogs of law.

As the saying goes, public opinion doesn’t have a law degree. It does, however, have access to the internet and isn’t shy on taking up the cyber torches and pitch forks when it feels curbed. And so this week a refresher lesson in cyber liberalisation was dished out to a company who failed to understand its market before dawning its big legal wellie boots and plunging on in to a reputational quagmire. 

Come on down YouTube, and, in particular, brothers Benny and Rafi Fine.

So what happened this time?

The brothers operate a successful YouTube channel named Fine Brothers Entertainment, which showcases ‘Kids React’, a series of videos displaying children’s reactions to various situations. The success gave rise to the spin off ‘Adults React’. In a YouTube sea of ‘reaction videos’ the Brothers sought to trade mark words including ‘react’ in Class 41, Entertainment, to protect their position. In so doing, however, what the Brothers and their advisers failed to take into account was how such an act may be perceived by their followers and subscribers: as an attempted oppression of freedom. The perception of the Brothers attempting to police or control the internet was met with unhappy incandescence. While no video of the Brothers’ reactions is available, hundreds of thousands of followers left, an apology was issued and the trade mark applications were abandoned.   

It stands as a timely reminder to businesses that protection and enforcement of rights must be weighed with other commercial realities such as how your market or audience may perceive your actions. The failure to understand that much of the channel’s success stemmed from the supporters’ approval of its non-big-corporate approach was then compounded by an attempt to obtain trade marks and an appearance of oppression of those most likely to be protective of their cyber libertarianism. Poor show, chaps.

Barbra’s lawyers find themselves in the duck sauce

No mention of backfiring rights enforcement can be complete without a nod to the quintessential case of Barbra Streisand. When Barbra’s lawyers attempted to sue California Coastal Records Project for breach of privacy owing to a photo of Barbra’s house featuring in their archive, well, they did not make a very good job of it. So unsuccessful were the lawyers in their approach that the attempted suppression and the reaction that followed created such great interest that the image was not just seen by more than might otherwise have seen it, but it actually went viral. The ‘Barbra Streisand Effect’ was born.

The Jack Daniels solution that goes down well

One example of a success story comes from the approach taken by the legal team of American whiskey Jack Daniels, who, when faced with a book cover very similar to their bottle label acted cleverly. The ensuing cease and desist was (according to the recipient) ‘as if the Gentleman Jack had penned it himself’. The polite and friendly approach was not only in-keeping with the laid back brand but was posted online by the recipient and went viral for all the right reasons. Cheers!

For rights done right, contact Brymer Legal.

Tuesday, 9 February 2016

What is the Law in Your Life?

5 things you should know about objecting to a company name:

1.   Any person can object to a company's registered name if the name is:

a)    the same as a name associated with the objector and in which he has goodwill; or 
b)   similar enough to such a name that its use in the UK would be likely to mislead by suggesting a connection between the company and the objector

The objector does not need to be a company.

2.  There are specific circumstances in which there will be a presumption the company's name was registered legitimately. These include that:

a)  registration took place before the start of the activities on which the objector relies to show his goodwill; 
b)  the company is carrying on business under the name; 
c)  the company is proposing to carry on business under the name and has incurred substantial start-up costs in preparation; 
d)   the name was adopted in good faith; 
e)   the interests of the objector are not adversely affected to any significant extent.

If one of these presumptions applies, the objection must be dismissed unless the objector can show the respondent registered the name either to obtain money from the objector or to prevent him registering the name. In that case, the objection must in most circumstances be upheld.
If none of the presumptions applies, the objection must be upheld. It is to be noted that one of the defences is that the company is operating under the company name; an application to the adjudicators is not an alternative to an action for passing-off or trade mark infringement.

3.   If an objection is upheld, the offending company name must change to one that does not raise an objection within the time prescribed by the adjudicator. If the company fails to do so, the adjudicator may determine a new name for the company.

4.    The adjudicators are based at the Intellectual Property Office in Newport, South Wales. Collectively the adjudicators are called the “Company Names Tribunal” and they will consider objections against a company's registered name.

5.    When making an application to the Company Names Tribunal the objector must give his own details and the details of the company name to which he objects, together with a concise explanation (the statement of grounds) as to why he is making the application. The objector will need to enter a UK address to which the Tribunal can send correspondence and he will need to include the application fee with the form and fee sheet. The objector will also need to make a statement regarding whether he has contacted the company in relation to the matter prior to filing the application; when he did so and what he said to the company. If the objector does not give the company name holder adequate notice of his intention to file the application, this may affect any award of costs at the end of the proceedings.