Legal Protection for the Hot Tips Trademark - Essay Example

Cyber law Assignment The first issue that arises in Shark’s case is that of his trademark that protects his domain A trademark is a registeredsign1 that is used to distinguish the goods and services provided by a particular trader, based upon the Trade Marks Act 1995. In this case, since Shark owns a registered trademark, it provides legal protection for the Hot Tips trademark throughout all of Australia for ten years. The effectiveness of trade mark protection depends upon the enforceability of rights and trademark infringement suits are few but very successful for the owners2. In reference to the Hot Tipster software program, Shark has invested a considerable amount of time and effort in developing the program. The intention behind providing the protection of copyright is to ensure that a creator of an original work is able to freely enjoy the material and economic benefits arising from his/her work, preventing others from unfair gain from the creator’s effort and labor3. In assessing whether Shark’s program Hot Tipster would be eligible for such protection, in the case of Apple Computer Inc v Computer Edge Pty Ltd, Beaumont J held that the object code of a computer software program consists of impulses which are stored on a silicon chip and consequently does not qualify to be categorized as a literary work4. However, in later developments, the Copyright Act of 1968 (Cth) included a provision to include computer programs within the definition of a literary work.5 Under this provision, Shark’s computer program would also qualify as a literary work and would be eligible for protection. In the event any party attempts to copy this software program, Shark may be able to sue for infringement of copyright. In the case of Autodesk v Dyason6, a computer software program named AutoCAD was created by Autodesk with a subprogram to run a hardware lock that went along with the program. The defendants created another computer program designed to use the AutoCAD program without the lock and it was held to be a piracy. However in the full Federal Court, it was held that when functional equivalence was achieved through two completely different algorithms, no copyright infringement will be deemed to have occurred7. But when the case was appealed by Autodesk at the High Court, it was held that despite the difference in the algorithms used to create the programs, the substantial part was identical since the binary code created by the two programs was identical, hence an infringement of copyright had occurred.8 The Copyright Amendment (Digital Agenda) Act of 2000 provides an amended definition of a computer program as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”9 Applying this precedent in the case of Shark, his software program Hot Tipster performs a specific function of analysis and may be eligible for copyright protection. Another important issue that arises in Shark’s case is that of metatag Race TAB, which provides a link to direct searches to his website hottips.info.au. This is a form of inlining or scraping because it enables Shark to incorporate material from the official TAB home page into his own page through a process of extraction of relevant material10. Such material includes the form guide of the daily race meetings, which Shark appropriates and issues to subscribers for a fee. This practice of inlining occurred in the case of enthusiasts who inlined daily Dilbert cartoons into their own sites and had to be issued cease and desist letters, while the original site also incorporated technical countermeasures to prevent such inlining from taking place11. Shark may also be liable under this aspect and may have to desist from using the raceTAB metatags. The information that he uses from the official TAB site may constitute public information, however Shark is using it in his own site and is charging a fee of 20$ per week for the service to subscribers. Thus, he is economically exploiting the information and there could be grounds which arise for passing off or misleading and deceptive conduct.12 The linking of information from the official TAB site onto Shark’s site could be held to be objectionable because it gives an impression that Shark’s site is endorsed by the official TAB website. Shank may be held liable for trademark infringement, because a link from the official TAB site may involve the use of the code which contains the registered trademark. Moreover, it is also likely that Shark’s advertisement on the TAB site claiming 1200% profit could be held to be deceptive advertising under the Trade Practices Act (1974). Section 52 of this Act states that in trade or commerce a corporation or business entity shall not “represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have [or] represent that the corporation has a sponsorship, approval or affiliation it does not have….”13 The flashing box advertisement that Shark has taken on the official TAB page is paid for, therefore there may not be any claims that can be brought against it by the official TAB site, since it exists on the site with permission. However, the claim made in the advertisement is that a 1200% profit can be made. Shark justifies his claims by taking into account the 200$ joining fee only. But the reality is that subscribers are also required to pay an additional 20$ fee each fee and the betting stake for each bet they place, hence their actual investment is much higher and does not give rise to a 1200% profit as claimed by Shark. Lastly, the issue arising in the case of the request of “Gamblers Anonymous” for Shark’s subscriber list is one of privacy. The right to privacy is regarded as a fundamental human right; however there was no privacy law as such under common law provisions14 in Australia until 1998. The Commonwealth Privacy Act of 198815 applied to all Government entities and credit reporting organizations up to 2001, however its provisions have also been extended to private sector organizations under the provisions of the Privacy Amendment (Private Sector) Act 2000. This Act contains ten National Privacy Principles16, which state that personal information must be collected only if absolutely necessary, must not be disclosed to other parties without the prior knowledge and consent of the person concerned although access to such information must be provided to the person whose information it is and the organization collecting the data must protect such personal data from unauthorized access. Shark will thus be obliged to protect the personal information of his subscribers and cannot disclose it to Gamblers Anonymous without the knowledge and consent of his subscribers. In conclusion therefore, Shark’s trademark will be protected and his software program may also enjoy copyright protection against infringement by others. His labor and effort in creating the program will be protected and he will have cause of action to sue if others use or misuse the program in any way. However, he does need to change the wording on his advertisement to reflect a more true picture of actual profits, failing which he may be liable for deceptive practices under the Trade Practices Act. He may also need to come to some financial sharing agreement with the official TAB site and offer them a share in the 20$ fees collected from subscribers for information that is originally generated on the official TAB site. ………………………………..1249 words 2. The betting transaction by Snake for the Melbourne Cup day may not be held to be valid under the rules required for electronic transactions. Although Snake’s time of placing the bet was completed at 3.00 PM and the race commenced only at 3.12 PM, the final recording of his bet came through only at 3:15 PM when bets for the race had officially closed, since the race had already begun at 3:12 PM. Therefore, the official time of receipt of Snake’s bet by TAB was at 3:15, which would have made it an invalid bet because it was received after close of betting. As per the Electronic Transactions Act of 2000 in reference to the time and dispatch of electronic communications, the dispatch of information occurs when it enters the communication system17 therefore Snake’s bet has entered the system at 3.00 P.M. However, the Act also specifies that “unless agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication comes to the attention of the addressee.”18 Hence, the official time of receipt of the bet is only at 3:15 PM, which is officially a time when bets have closed and therefore Snake’s transaction would not be a valid one. There is no prior existing agreement between Snake and the official TAB site to modify or adjust the time, therefore the bet will be one that has come in after betting has closed. TAB will not be obliged to accept the bet or to honor the terms of the bet. Evidence can be generated relating to online transactions, and all the general legal elements will apply and a contract is created when an offer is accepted and this acceptance is communicated. From a legal perspective, in an ordinary electronic transaction, clicking the “I accept” button constitutes an acceptance of the terms of the contract, which is communicated to the seller instantaneously, since this is an acceptance being communicated through the electronic medium19. However in this instance, Snake’s registration process on the official TAB website may constitute a valid transaction because there is no time constraint on this aspect, but his bet in order to be valid, should have been recorded into the system before the close of betting, which is not the case. The elements of offer, acceptance, consideration and intent to enter into legal relations can all be established electronically through online evidence that is generated. In this instance, the time of receipt of the bet by the official TAB site will clearly show that it has been received after close of betting, therefore although Snake has won his bet, there is no obligation on the part of TAB to pay him the proceeds on this bet, because it does not constitute a valid one. Shark may have a strong case against Snake for (a) violation of his registered trademark Section 120 of the Trade Marks Act of Australia defines three categories of conduct that will amount to the infringement of a trademark20, which were also spelt out by the Court in the case of Coco Cola Company v All Fect Distributors Ltd21. Snake’s infringement falls under the second category of use of the registered trademark itself for services identical to the designated services protected by Shark’s trademark. He has used the same domain and program names that Shark has and set up an identical mirror site to Shark’s for the specific purpose of economic exploitation of the payments made into that site. As a result, Snake will be liable not only for trademark infringement, but also for infringement of copyright of Shark’s “Hot Tipster” program22. Moreover, Snake may also be liable under the Cyber crime Act of 2001 (Cth), which has been formulated specifically to deal with crimes such as hacking. Section 477.1 makes it an offence to access or modify computer data or impair communications to or from a computer “without authorization and with the intention of committing a serious offence” and also includes the kind of conduct that is geared towards impeding other communications passing through a server23. The Criminal code Act of 1995 (Cth)24 also makes it an offence to access or modify computer data and section 477.3 makes it an offence to impair communications to and from a computer, What Snake is doing in effect is to divert communication from Shark’s site to his own and he would therefore be liable for the offence. Snake has also accessed data that is restricted and he has done so without authorization. The Criminal Code Act of 1995 holds that data to which access is restricted through an “access control system” associated with the computer will be protected against hacking25. The Criminal Code Act of 1995 holds that modification of data, such as what Snake has done, would be unauthorized if “the person is not entitled to cause that access, modification or impairment.”26 Although the question of what will constitute unauthorized access is not specifically defined in New South Wales, the general provisions of the Act would apply, as also the provisions of the Crimes Act of 1900 (NSW), which holds that unauthorized access to data held in a computer will occur when it involves “copying or moving of the data” or the “execution of the program.27” On these grounds therefore, Snake may be criminally liable for infringement of trademark and infringement of Shark’s copyright, hacking, and unauthorized access to restricted data held on Shark’s computer. Snake would also be held liable for deflecting about 800 subscribers away from Shark’s site to his own, and may be economically liable to compensate Shark for the fees he has received from those subscribers by pretending to be Shark. This equates to misappropriation of monies that should have gone to the creator of the original software program. It constitutes a direct exploitation of Shark’s labor and effort for the benefit of an unauthorized person, in this case Snake, who has not even obtained a license to use the software generated by Shark. This will construe an offence under the Copyright Act of 1968 (Cth). Apart from his liability under the Electronics Transaction Act and criminal liability to Shark, it also appears that Snake could be held liable for inlining and misuse of metatags as outlined earlier28. He is guilty of unauthorized linking of material from Shark’s website in providing an impression that he is officially authorized by Shark in operating the website and may also be held liable for violation of the code of the original program through the use of unauthorized links, transferring the original content on Shark’s site on to his own. He may also be held guilty of unauthorized duplication of content available on Shark’s website, which is protected through the use of a trademark, as well as economic exploitation of the proceeds that should have accrued to Shark but were instead deflected to Snake through his appropriation of 800 of Shark’s subscribers. ……………………..1170 words Bibliography * Ali, Izaz, 2004. “Contract law in relation to contracts online”, Retrieved February 18, 2008 from: http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Contract%20Law%20in%20relation%20to%20e.htm * Bosland, Jason, Weatherall, Kimberlee and Jensen, Paul, 2006. “Trademark and counterfeit litigation in Australia”, Intellectual Property Quarterly, No: 4. retrieved February 16, 2008 from: http://melbourneinstitute.com/people/pjensen/pdf/IPQ_article.pdf * Criminal Code Act of 1995 * Crimes Act of 1900 (NSW) * Cyber Crime Act of 2001 (Cth) * Electronics Transactions Act of 2000. retrieved February 19, 208 from: http://www.austlii.edu.au/au/legis/nsw/consol_act/eta2000256/s13.html * Holyoak and Torremans, 2005. “Intellectual property law”, Oxford University Press * Jackson, M, 1997. “Data Protection regulation in Australia after 1988”, International Journal of Law, Information and Technology, 5: 158-191 * National Privacy Principles. Retrieved February 16, 2008 from: http://www.privacy.gov.au/publications/npps01.html * Privacy Act of 1998, Retrieved February 16, 2008 from: http://scaleplus.law.gov.au/html/pasteact/0/157/top.htm * Trade Practices Act (1974) * Trademarks Act of 1995 * Section 120 of the Trade Marks Act of 1995. retrieved February 16, 2008 from: http://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/s120.html * Tucker, R.L., 1999. “Information superhighway robbery: the tortious misuse of links, frames, metatags and domain names”, 4 Virginia Journal of Law and technology, 8 Case law: * Apple Computer Inc v Computer Edge Pty Ltd (1983) 50 ALR 581, 1 IPR 353 * Autodesk Inc v Dyason (No: 1) (1992) 173 CLR 330 * Autodesk v Dyason (1989) 15 IPR 1 * Coco Cola Company v All Fect Distributors Ltd (1999) 96 FCR 107 * Dyason v Autodesk Inc (1990) 24 FCR 147 * ebay Inc v Bidders Edge Inc 10 F Supp 2d 1058 (2000) at 30 and 470 Read More