Trade mark case could set a precedent for website blocking

For the first time ISPs are being asked to block websites on the basis of alleged trade mark (rather than copyright) infringement. Whilst ORG takes no view on the merits of the trade mark claims in the current case, we believe the outcome of this case will have implications for future trade mark blocking applications, which could potentially threaten the legitimate interests of third parties.

Legal Director, Elizabeth Knight said: “As the court is being asked to extend the circumstances in which blocking orders are granted, it’s vital that the wider public interest is taken into account. We hope that our intervention will help ensure that future claimants cannot use blocking orders to restrict legitimate activity or free speech.”

David Allen Green, lawyer at Preiskel & Co LLP, is acting for ORG pro bono. He said:

“In our adversarial system it is hard for the voices of third parties to be heard by a judge, even when the court will be developing remedies which can affect the legitimate rights of people who are not parties to a particular case. In this case the High Court has kindly permitted the ORG to intervene so as to make detailed submissions on how this novel jurisdiction should not be abused.”

The case has been brought by luxury brands Cartier International and related companies. They are calling for BSkyB, BT, EE, TalkTalk and VirginMedia to block a number of websites that they claim have been using the brands’ trade marks for counterfeiting activity.

In its submission to the Court, ORG stresses that it is neutral about the details over this particular case. The organisation’s concerns are that if the claimants are successful, the ruling could be used as a basis for applications for blocking orders that are contrary to the public interest – for example, if the judgment was used to try and block websites that use trademarks to legitimately criticise or parody well known brands. Court blocking orders may also affect commercial third parties who have no involvement in any alleged infringement – for example law abiding businesses whose products appear on websites alongside those of companies involved in infringing activity. ORG is not opposing the current application, but has submitted to the court a test that should be adopted so that blocking orders are only granted in circumstances where they are proportionate, effective and contain safeguards against abuse.

ORG is campaigning for more transparency around websites blocked for legal reasons through its Error 451 project. ORG is calling for ISPs to show an error 451 message when material has been blocked by a court order and to provide more information to the public.

NOTES

The case will be heard by Mr Justice Arnold at the High Court of Justice, Chancery Division. ORG’s submissions were written by David Allen Green with the assistance of Elizabeth Knight and Greg Callus.

David Allen Green has given a more detailed account of the issues at stake on our blog.

For more information or to arrange interviews, contact: Pam Cowburn, 07749785932, pam@openrightsgroup.org