15 August, 2014

Retrospective - What is a 'Work' in Copyright?

Lawyers and the legal profession love their words and their singular interpretations, which can be quite odd from the perspective of the layman, especially when the interpretation seems quite obvious from the very beginning. Even so, we have learned to embrace this tradition, and understand that the nuanced meanings of words can have a huge impact on cases and their outcomes, and have no shame in jostling over the meanings of even the most basic of words. Intellectual property in this regard is no exception, and a word that is very important in terms of copyright is what is a 'work' protectable by copyright? As said, the answer may seem obvious and the discussion of what is a work seem a bit frivolous, but the reason why is incredibly important. What constitutes a 'work' under copyright sets up boundaries for the laws and expands or limits its application to both old and new artistic endeavors, making it one of the most important parts of interpretation when discussing the scope of copyright. Although discussed for for as long as copyright has existed, the modern definition of what a 'work' is came about in the 1960s through the hands of the House of Lords in the United Kingdom.

The case in question was Ladbroke (Football) Ltd v William Hill, which dealt with two competing companies in the sphere of bookmaking. The respondents to the appeal, William Hill, were firmly established in the marketplace, sending out weekly football odds to their customers during the season. The appellants, Ladbroke, have also been well-established players in the world of bookies, and entered the football bookmaking scene in the late 1950s, sending out coupons which looked very much like the ones William Hill sent to their customers. As a result William Hill sued Ladbroke for copyright infringement, with the case culminating in the highest court of the UK in 1964.

Sisyphus, for some reason, thought his work was for naught.
The coupons which the case concerned were very simple in their design, consisting of a list of the games that week along with boxes next to each match, allowing for the person to indicate the games' outcomes and therefore to change the odds of winning, as each bet would have to be successful for the individual to win. Some of the lists provided contained all of the games that week, whereas some only contained a selection of games. William Hill's coupons contained 16 lists, while Ladbroke's coupons contained 15 lists of games. The latter lists were almost identical to William Hill's ones, with only some slight deviations in terms of headers or different odds. What was allegedly copied were the possible wagers to be made and, to a large extent at least, the layout and headers of the lists. The big question that remained was whether such lists would be a work protectable under copyright.

Under the Copyright, Designs and Patents Act 1988 a 'work' is defined as "...a work of any of those descriptions in which copyright subsists", which include musical, literary and artistic works, among others. That definition alone seems like not much help, but it's an important statement of what can be considered as obvious, which can be expanded upon. Although the wording differs from the Copyright Act 1956 which was at issue in the case, the considerations can be argued to applying equally to the newer 1988 Act.

The discussion in the case pertained mostly to whether such a work could be considered as an original work (more on which can be found here); however whether the sheer compilation of information into tables and lists would be a work is also quite important under this consideration. After all, even if a work is 'original', but does not qualify as a genuine 'work' (in most cases quite hard as the two are more or less intertwined), the piece would not attract copyright protection. In the end this is a determination by assessing the "...skill, judgment or labour" put into the creation of the work; or in other words, did the author of the work do anything more than the bare minimum in the creation of the work in question. Many have mentioned the very scattered approach to this question, as often judges will take into account expense, knowledge and even literary skill employed into the creation of the work; leaving the question without a definitive judicial consideration. This has been seen different in the United States, as under the Feist Publications v Rural Telephone Service decision (more on which can be found here) effort alone won't give a work protectability under copyright. In the end the appeal was dismissed by the House of Lords, and William Hill's coupons and lists were indeed protected by copyright.

As one can see what a 'work' is is quite ambiguous, and the consideration of judgment, skill and labor leaves it even more in the mist, as plain effort might not be the most accurate description or factor in deciding what truly amounts to a work or not. This uncertainty leaves short pieces and low-effort works potentially in the fringes of copyright, and can cause issues to those authors as a result. Clearly this is something which copyright should not cause, and might be a reason why the definition of a 'work' should be revisited by either the judiciary or the legislature in the future.

09 August, 2014

Monkey Business - When Copyright and Simians Collide

The law and the world surrounding it can often be dry and, quite frankly, boring to those who don't love it as most of us working within the legal profession. However, sometimes a topic comes through that permeates that misconception and brings the law and its impact into the discussion at large, often through more unconventional events. In this vein a question can be posed: can an animal own the copyright to a work? This writer for one had never considered this and found himself pondering it a bit longer than I would like to admit. Due to this extended contemplation this answer should be shared for those interested in the implications of animal artistry and copyright.

This issue came to light after an image of a macaques taking a 'selfie' was spread around the Internet, springing up a discussion of both copyright and whether the trend of the 'selfie' has well and truly gone too far. The photograph was taken with a camera which the monkey appropriated from David Slater, a nature photographer in his own right. After his acquisition of the camera the monkey took several pictures, a few of which turned out quite fantastic and display the monkey grinning and staring at the camera. The images were shortly thereafter uploaded to Wikimedia, and have remained there since as freely usable images, with Wikimedia firmly contesting any and all assertions of copyright in the pictures and argue they are in the public domain. As posed above the question still stands: can this monkey own the copyright to its 'selfie', or can Mr. Slater claim the rights over the picture even though he did not take the picture himself?

Rick wanted to ride the animal selfie fame train as well
Under the UK Copyright, Designs and Patents Act 1988 a work is only protected by copyright if it is created by an 'author', defined as "...the person who creates [the work]". Arguably, at least on the face of things, the monkey will have no rights in the pictures as animals are not 'persons' within the meaning of the Act, making the work ineligible for copyright. Although Mr. Slater owned the camera and potentially set up the photo he still does not own the copyright for the work as he himself did not take the photograph. Sometimes the final piece of the puzzle is the most important, especially in intellectual property law.

In the United States there is no real definition of an 'author' under US Copyright law, leaving the matter, on the onset, in limbo. However, through the guidance of the United States Copyright Office's Copyright Compendium, the term 'authorship' used in the US legislation "...implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable", and that non-human authors such as monkeys, therefore cannot hold the copyright to a work.

The photographer has since argued that the monkey "...was [his] assistant", potentially causing a case of joint authorship in the work or even affording the rights to Mr. Slater outright. Through his own admission Mr. Slater "...set the camera up on a tripod, framed [the shot] up and got the exposure right", giving the final shot to the monkey itself. Right from the start one has to be slightly incredulous about Mr. Slater's assertion here, and with no evidence bar his own word, as the monkey has refused to comment on the matter, his presentation of what happened has to be taken with a pinch of salt. Should he have effectively directed and set out the shot for the monkey he could potentially claim authorship, as framed by Brad Newberg: "If the photographer actually developed it in a certain way, made some tweaks, used some lighting to make some original choices, and said essentially 'Look at my collaboration with this monkey,' then he would have had some part of the creative process", and could potentially claim the rights to the work. In the end this would be a matter he would have to argue in court, and would be hard-pressed to do so.

So far the monkey's picture has lost Mr. Slater over 10,000 pounds since 2011, and clearly presents him with an incentive to pursue the matter further, especially due to the notoriety of the case at the moment. This writer for one would absolutely love to see the argument go into litigation and hopes Mr. Slater will pursue the matter further, if not just for the legal profession's enjoyment. The case would decide the rights of dozens of animals and who knows, maybe one of them will be the new big thing in nature photography.

Source: Ars Technica

04 August, 2014

Can You Infringe Copyright by Browsing the Internet?

Browsing the web can be full of pitfalls, both legally and in terms of your own safety. It's this world that we endeavor to navigate on our times surfing, but often don't think about the unknown issues or are blissfully unaware of the implications of our digital actions. It's because of this many things can slip through the cracks. Web browsers have made temporary copies of the content we read, look at and watch for years, more often than not without our knowledge, and this can present legal issues when dealing with copyrighted content, whether we want it or not. Whether just innocent surfing can infringe copyright is an interesting question, and this writer for one automatically thought the answer would be obvious, yet one would be surprised about the nuances behind the answer.

The case which dealt with this interesting conundrum was Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd, having been referred to the European Court of Justice by its UK counterpart earlier on in 2013. The Public Relations Consultants Agency (PRCA) is an association public relations professionals, who among other duties monitor the news for their clients, clearly to safeguard or preempt any potential PR disasters. The members of this association used a service provided by the Meltwater group of companies; one which used software to automatically compile an index of words used by newspapers in their content online. To better utilize this service Meltwater's clients provide them with a list of search terms which interest them, which are then used to create an index which is oriented around those key words. In the service's results the opening words of the article, the key word and a few surrounding words and a hyperlink are provided for the client, allowing them to find the article containing their desired content more easily. The service does not circumvent any paywalled articles, and the client will have to pay for that specific content should they wish to view it. The respondents of the appeal objected to this use of their content, and took the Agency to court, culminating in the UK Supreme Court in the earlier part of 2013.

The button that all internet users wished existed for certain purposes
The question faced by the ECJ therefore was, as iterated by the Supreme Court: "The question which arises on this appeal is whether [Internet users reading the an article online] are nonetheless infringing copies unless licensed by the rights owner [by creating temporary copies of those works]". More specifically whether this infringes Directive 2001/29/EC, and through which the Copyright, Designs and Patents Act 1988.

Under Article 5 of the Directive incidental copies are treated as not infringing copyright should they be "... temporary, transient or incidental, which are an integral and essential part of a technological process and whose sole purpose is to enable... a transmission in a network between third parties by an intermediary, or a lawful use... and has no independent economic significance". Arguably, on the face of it, the matter is quite clear-cut, as temporary copies are essential to how the internet functions and how we both conserve and make internet traffic more efficient. Nonetheless, the matter is still not that simple, at least from a legal perspective.

The court quickly saw that the temporary copies made through the viewing of websites indeed do satisfy the first requirement under Article 5, as the copies are lost once the user moves on from the website and other content is subsequently brought in to replace the temporary copies of the prior page. This makes those copies wholly temporary in nature. The court then moved on to the third requirement, under which the copies have to be essential for the technology to work properly; or as presented in Infopaq International v Danske Dagblades Forening: "...first, the acts of reproduction are carried out entirely in the context of the implementation of a technological process and, secondly, the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts". As the user has to say (mostly) in the creation or deletion of these copies, the technology needs for those copies to be created in order to function as intended, as they are a part of its process. The copies are, as said above, essential to the internet's proper function and help prevent excess volumes of traffic, which would undoubtedly choke the internet beyond use. The court seemed quite satisfied with the technology satisfying the second requirement, meaning that the technology is needed for the process to function properly and efficiently, and therefore satisfies the third requirement.

Under the second requirement the copies have to be transient or incidental, and as the copies, as stated above, are deleted once the user switches to a different page, they are transient, even if there is some level of human intervention in their deletion. Finally, the copies are created as a part of the technology which uses them, and do not by themselves exist independent of it nor have a purpose outside of it, making the copies incidental for the purposes of Article 5. The court therefore saw that the temporary copies created during web browsing do not infringe copyright and are excluded as a part of Article 5.

As one can see the ECJ's decision was one of pragmatism and common sense. The prevention of transient copies in the viewing of content on the web would be detrimental to how the internet functions today, potentially even causing issues in its overall usability. As said above the answer to the question seemed obvious, and quite frankly, should not have even been argued in court this far. The matter will be passed onto the Supreme Court to decide on ultimately; however the ECJ's word is a powerful one and clearly demonstrates an unwillingness to compromise the net as we know it for the sake of copyright.

Source: The Guardian

26 July, 2014

Thoughts on the Alice Corp v CLS Bank Decision

Software is big business in the 21st century. With over 400 billion dollars worth of revenue having been created in 2013 alone, and arguably the market is growing by the year, you can't help but understand the vehement defense of those interests even if it often seems to be for nothing but profit, and not the defense of a legitimate product or competitive edge. What gives software, and subsequently software patents (discussed in more detail here), a bad name are so-called 'patent trolls', or more officially Non-Practicing Entities (sometimes also called Patent Assertion Entities). The companies rarely produce or use the patents they control, but merely use them as a means to recover licensing fees, potentially affecting the marketplace and software development quite negatively. In light of this whether software should be patentable or not, and if so what the limits are, has been highly contentious and of interest to many. Finally the matter arrived in the open arms of the United States Supreme Court, which issued is ruling on the question a bit over a month ago (discussion of the earlier decision can be found here).

The case of Alice Corporation v CLS Bank International dealt with Alice Corporation's patented method of mitigating 'settlement risk', which is the uncertainty of whether only one party will pay what it owes to another, by the use of a third-party. The software or computer process creates 'shadow records' of the parties' debits and credits, effectively mirroring their payment capabilities within their real world finances. It then allows or denies any transactions based on those records, should they fall within the payment capabilities of the owing party, finally issuing the payment order to the bank responsible for that transaction. This mitigates the risk of such transactions for both parties, leaving much less uncertainty as to the other party's payment capabilities. The patent's claims in question are as follows: "...(1) the foregoing method for exchanging obligations (the method claims), (2) a computer system configured to carry out the method for exchanging obligations (the system claims), and (3) a computer-readable medium containing program code for performing the method of exchanging obligations (the media claims)" - all of which are handled through a computer. CLS Bank handle currency exchanges internationally, and sought a declaratory judgment to invalidate Alice Corporation's patent under 35 USC 101.

What abstract truly looks like
In determining whether Alice Corporation's patent is invalid, the Supreme Court had to decide whether it would fall under a patent ineligible category such as laws of nature or an abstract idea. This assessment, as expressed by Justice Thompson in the unanimous judgment of the court, would entail: "First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts... If so, we then ask, '[w]hat else is there in the claims before us?'" The second step entails an assessment of whether the patent is an 'inventive concept', or in other words, brings something more to the table than just the idea itself.

The Supreme Court in their judgment draw heavily from the case of Bilski v Kappos (more extensively discussed on this very blog). They aligned Bilski's method of hedging risk to Alice Corporation's mitigation method, and determined the patent was indeed an abstract idea and therefore ineligible for the patent. This is because, referring to the Bilski decision: "...all of the claims at issue were abstract ideas in the understanding that risk hedging was a ‘fundamental economic practice.’". As, according to Justice Thompson, there is no meaningful distinction between Alice Corporation's patent and Bilski's patent, the former can be concluded to be an abstract idea in the same vein.

Although the court did determine that the patent was ineligible it could still contain a transformative element which turns it into an 'inventive concept'.  To put into better terms, referring to Mayo Collaborative v Prometheus Labs: "A claim that recites an abstract idea must include “additional features” to ensure “that the [claim] is more than a drafting effort designed to monopolize the [abstract idea]". The mere addition of a computer into the process, as evident from the extensive precedent in this area, will not make non-patentable inventions into patentable ones unless the implementation via the computer is more extensive.

Alice Corporation's patent largely relies on a computerized method which handled the risk mitigation, and on the face of it, seems to fall within precedent as unpatentable. The court outright rejected Alice Corporation's argument that the computer plays a substantial and meaningful role and determined that the patent is not an 'inventive concept'. Expressed better by Justice Thompson: "...the claims at issue amount to “nothing significantly more” than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer". The Supreme Court therefore rejected the appeal and Alice Corporation's patent was deemed invalid.

The decision is very important, however is not necessarily the axe to the head of software patents on the block. Although the Supreme Court rejected patents which merely give instructions to a computer, if applied more thoroughly and in such a way that it solves a problem such as in Diamond v Diehr. This distinction was expressed incredibly well by David Kappos for SCOTUSBlog: "[t]he distinction between patentable software in Diamond v. Diehr and unpatentable software in Bilski and CLS Bank is not about software at all; rather, the difference is the presence or absence of a definitive invention versus abstraction. Diehr's new and useful process for curing rubber was held to be innately patentable – the fact that it happened to be manifest in a software language was tributary". To put into different terms, software patents should be a nuanced application, a solution to a distinct problem rather than a blanket cover for a larger area, stifling progression and potentially causing issues in the technological developments of the future. The reception of the decision has been wildly mixed, and rightfully so, since the decision does both good and bad things to the patent sphere in the US. What impact it will have remains to be seen more down the line, but hopefully this will tackle patent trolls more than it does legitimate businesses - regardless of your definition of 'legitimate'.

Source: The Verge

20 July, 2014

Patenting Drugs - The Case of Marijuana

Drugs are very much a sensitive subject, especially when the law is concerned. Yet, with the ever-growing movement to legalize marijuana, which is gaining a lot of head-wind in the United States, the topic has to be considered from the perspective of business much rather than the perspective of disdain. This would entail revisiting the patentability of at least some sub-sets of drugs in the name of protecting the legitimate business interests of marijuana growers. Would such a change be desirable, and is it possible under today's laws?

In the States of Colorado, where marijuana was legalized in February of this year, sales have been incredible, with the business raking in over 20 million dollars in the first 6 months alone and some estimates seeing it grow to over 100 million dollars in the full year of 2014. Clearly business is booming, and could be argued to only grow if more States enact similar laws. In the market right now there are at least dozens of different strains of cannabis, and much like other commercial products with distinct features of their own, could merit protecting to ensure their viability in the marketplace.

Under 35 USC 161: "Whoever invents or discovers and asexually reproduces any distinct and new variety of plant... may obtain a patent [for that plant]". On the face of it, one could easily argue that cannabis plants could be patentable subject matter. This is overshadowed by the fact that marijuana still remains a controlled substance federally under 21 USC 812. It is because of this a federal patent cannot be issued over marijuana plants, effectively making them unpatentable. As the public perception and acceptance of cannabis and its use change, the laws might allow for the patenting of cannabis plants and plant varieties; however this change seems unlikely in the immediate future.

Alan was confused why the police asked about his bag of oregano
Plant varieties could be protected through trademarks, albeit only in name. The USPTO briefly added a category for marijuana in 2010, promptly removing it stating it was "...a mistake". Nevertheless marijuana strains could potentially be protected under trademark legislation, which was well explained by Kal Raustiala: "...trademark protection under both state and federal law does not require registration of the trademark with the government, but merely that the mark actually be used in commerce to identify the source of a particular product or service". Simply put protection is possible, but whether protection would be afforded by the courts is a question that will remain to be answered. One still has to note that trademark protection does not protect the plant strain itself, but merely the name as a badge of origin for that particular product. Trademarks will not necessarily prevent a competitor from using the plant strain and selling it, as long as they use a different name for the product.

As one can see, cannabis is, and will be, a hot-button issue in IP for years to come, and it'll be truly interesting to see where the law will go especially when considering the movement to legalize the substances gains more momentum. From a purely pragmatic, business point of view, the law should accommodate the change and allow for such plant variations to be protected. Whether this will happen will remain to be seen, but this writer for one sees it as almost an inevitability.

Source: Bloomberg

12 July, 2014

Sherlock Holmes Stays in the Public Domain, Yet Again

A case which this blog has discussed quite extensively during its life cycle in the United States' courts (early discussion can be found here, some more here), is the Sherlock Holmes case, where a long and arduous battle has been waged over the protectability of the crime fighting genius. battered, beaten and discussed at length, the case could have finally come to its end, and it seems that Mr. Holmes could be more usable to all of us as a result, after the US Court of Appeals published its decision almost a month ago.

For the uninitiated, the case of Leslie Klinger v Conan Doyle Estate dealt with Leslie Klinger, who intended to publish a book called In the Company of Sherlock Holmes; a sequel to his book A Study in Sherlock Holmes, a book very much written under the blessing of the Conan Arthur Doyle Estate (through a gracious licensing agreement, surely). As a result the book was refused by its publisher Pegasus, and instead of yielding and seeking a licence from the Estate Mr. Klinger sought a declaratory judgment from the court stating that Sherlock Holmes belongs in the public domain, and would therefore be free for everyone to use. At first instance Mr. Klinger was granted the summary judgment he had sought, however this resulted in the Estate appealing the decision, which landed softly on the Court of Appeals' lap.

In the court's decision, delivered by Justice Posner, the Estate appealed the summary judgment under two grounds: that the court did not have jurisdiction over the matter as there was no dispute to be decided, and should they be decided to have jurisdiction, the Estate argued that the 'complex character' of Sherlock Holmes, cultivated over the years of story telling in the character's universe, would only be out of copyright once the latter stories have seen their copyright protection period end, as many former stories have already fallen out of copyright protection. The latter argument was well presented by Justice Posner: "...[even though the] early stories... are already in the public domain does not permit their less than fully "complexified" characters in the early stories to be copied even though the stories themselves are in the public domain".

Even Sherlock was tired of this constant bickering
Justice Posner first tackled the issue of jurisdiction which, under 28 USC section 2201, is limited to only cases which pertain to an 'actual controversy'. This relates to declaratory judgments alone, and as Mr. Klinger sought such a declaration, his matter would have to pertain to a controversy (i.e. a legal dispute) for the court to be able to give the aforementioned declaration. Due to Mr. Klinger's prior knowledge of the Estate's actions should he publish the book, he had intimate knowledge of a potential dispute, giving jurisdiction to the court to give a declaratory judgment as there was a true legal dispute.

The meat of the case was in whether a 'complex' character could bring protectability to earlier works, or to the character as a whole in the series through his or her development in that particular series. Justice Posner rightfully opened with the notion that, under US law currently, there is no possibility to extend copyright protection on something which has ceased to be protected, even if the character lives on in the series and in works which are under copyright still. Quoting Silverman v CBS, Justice Posner stated that "[t]he copyrights on the derivative works, corresponding to the copyrights on the ten last Sherlock Holmes stories, were not extended by virtue of the incremental additions of originality in the derivative works". The latter ten works, which are still under copyright, remain protectable only to those part which have been added and are truly original to the author or authors of those parts; the rest remain unprotectable.

Although the Estate argued that, should copyright protection not be afforded to character which are developed in a longer span of time, there will be less incentive for authors to create those works. Justice Posner effectively rejected this notion, and put forth that the dissemination of works and the incentive to do so even with materials which are in the public domain, is important as well and should not be wholly dissuaded by law. Even though the characters were, through the Estates argument, 'rounded off' in the later issues of the Sherlock Holmes saga, this does not extend their copyright protection to the entire 'complex' character even in the former parts of the series. Justice Posner affirmed the prior decision, and Sherlock Holmes effectively stayed in the public domain as a result.

The Estate's argument was indeed a novel one, and did provoke at least this humble writer to ponder whether complexity is defined through longevity, as opposed to the initial originality. Incremental developments of characters and stories happen all the time, almost organically, yet that does not mean the essence of the very character you first met on those first few pages was somehow altered beyond recognition. Who and what Sherlock and his companions were will not cease to exist the moment they're created upon and added to by others, but they'll live on stronger, renewed and revitalized, and I for one am sure that younger generations will appreciate those works just as much as Sit Doyle's works.

Source: IPKat

03 July, 2014

Retrospective - Trademarks and the Internet

The Internet has shaped our world in too many ways to even count, and the law and its application has not been exempt from this radical change. What had to apply in only a largely physical and restricted world, now has to operate in one which knows practically no physical or territorial bounds. Through this the use of intellectual property has become international, and the law's confides of struggle to fill the gaps left in this transition to a digital domain. An example of this is the use of trademarks, and whether their use online can infringe on the mark of others, even if done in a different jurisdiction. The answer, at least on the outset, is not an obvious one, but was faced by the United Kingdom Court of Appeals over a decade ago.

The case in question is 1-800 Flowers Inc v Phonenames Ltd, decided in the very first year of the second millennium, which dealt with the phone number "800-FLOWERS", registered in the US as a trademark in the mid 1980s by the company 800-Flowers Inc. The company ran a floral telemarketing company, selling flowers and floral products via telephone to those who called the number 1-800-FLOWERS (or numerically 1-800-356-9377), via the Internet and through physical locations, to destinations both in the US and outside of the country. Phonenames were a business which dealt with alpha-numerical phone numbers in the UK, much like the one above, acquiring them and selling them on to business who wish to use them. Phonenames acquired the number which equated to 800-FLOWERS in the early 1990s from British Telecom, although ownership of the number still remained with BT. 800-Flowers had applied for the same number prior to Phonenames, failing to acquire it while still advertising the new service in newspapers. 800-Flowers then appealed the issuing of the phone number, arguing it would lead to confusion as they could establish a firm presence and goodwill within the US. The matter was ultimately appealed to the Court of Appeals for a final decision.

The case included deliberations on sections 10, 11 and 17 of the Trade Marks Act 1938. Section 10, which deal with whether the mark is capable of distinguishing the 800-Flowers' service in the UK, allowing for its protection, was the first consideration. Lord Justice Parker saw that the usage of alpha-numerical numbers was foreseeable in the UK during the number's registration in 1993, however even then the number was only just that; a phone number, and would not be capable of distinguishing the appellant's services from others in purely that form. The appeal also failed under section 11, as there could not be any confusion since the appellant had not used the number in the UK, creating no prior use which consumers could reasonably believe would be the appellant's service.

What is more relevant to the question posed is under section 17. Under the provision a mark has to be used in the UK (emphasis the court's) to be considered a 'proprietor', defined more specifically under section 68. If no use is found, the appellant cannot be considered to owning the trademark in the UK. This is very important in the proposed Internet context, as the Internet spans vastly beyond the origin country where a website is ran or owned. Lord Justice Parker indicated a website does not necessarily in itself cause for there to be use in the UK, specifying that "...the evidence (such as it is) concerning the Applicant's internet website [is not] sufficient to justify the conclusion that accessing the website amounts to use of the mark at the point of access". Among other considerations, Lord Justice Parker refused the appeal, as there was no sufficient use on 800-FLOWER's part within the UK, even with the existence of the phone number and a website.

Lord Justice Buxton further considered the Internet in his deliberations, still agreeing with the majority's decision. In his mind the matter is still quite open, and needed to be addressed directly:

"The implications of internet use for issues of jurisdiction are clearly wide-ranging, and will need to be worked out with care both in domestic and in private international law... I do venture to suggest that the essence of the problem is to fit the factual circumstances of internet use into the substantive rules of law applying to the many and very different legal issues that the internet affects. It is therefore unlikely, and it is nowhere suggested, that there will be one uniform rule, specific to the internet, that can be applied in all cases of internet use. That consideration is of importance in our present case, because it was a significant part of the applicant's submissions that, for instance, "publication" of statements in a particular jurisdiction by downloading from the internet according to the rules of the law of defamation or of misrepresentation was of at least strong analogical relevance to whether a trade mark downloaded from the internet had been "used" in the jurisdiction to which it was downloaded; and, even more directly, that when A placed a mark on the internet that was downloaded by B, the same criteria should apply in determining whether A thereby used the mark as determine whether A thereby infringed the same mark in the jurisdiction where B was located."

Greg now understood that she wanted flowers, not carrots - a typical mistake
His honor finally rejected the potential notion that use on the Internet would amount to use in every jurisdiction the mark might be potentially accessed from, even via the net: "I would wish to approach these arguments, and particularly the last of them, with caution. There is something inherently unrealistic in saying that A "uses" his mark in the United Kingdom when all that he does is to place the mark on the internet, from a location outside the United Kingdom, and simply wait in the hope that someone from the United Kingdom will download it and thereby create use on the part of A". One can easily agree with Lord Justice Buxton, and as he further states, 'use' should entail a more active component than just passively placing in in a sphere where it is easily accessed from, even by accident. The active part could be an advertisement in that country, or something which encourages the use of the web facilities. To summarize one can quote Justice Jacob in the case's first appeal in the High Court: "...the mere fact that websites can be accessed anywhere in the world does not mean, for trade mark purposes that the law should be regarded as being used everywhere in the world. It all depends upon the circumstances, particularly the intention of the website owner and what the reader will understand if he accesses the site. In other fields of law, publication on a website may well amount to universal publication".

As one can see the Internet poses an interesting sphere where trademarks present their owners with an abundance of opportunities for exposure; however this has to be balanced with regulation and limiting the Internet's scope in terms of use. The Lords above are quite correct, but one can say the Internet has not had its last impact on trademarks.