Archive for October, 2012

Your Domain Name

Make sure the right person is the registered owner of your domain name e.g. your company.  If it is in the name of an employee, there can be problems if he or she leaves the company’s employ.

If your website is high profile or successful, it may become the target of attack by hackers or those seeking to gain a financial benefit from the name or goodwill of your business. For instance, if your organisation is a charity, there is nothing to stop someone setting up a ‘spoof‘ or fake website and diverting donations away from people who think they are dealing with your website to the fraudster’s website, which can result in large financial losses.

It is therefore important to ensure that you register a trade mark corresponding to your domain name, so that third parties cannot use it or a similar name, as well as registering alternative versions of your domain name so others cannot do so.  Likewise, make sure your domain name doesn’t infringe a third party’s registered trade mark, in any part of the world where your website is likely to be looked at.

Own Your Own Website

Make sure you own the copyright in your website.  If it is developed by one or more of your employees in the course of their employment, the copyright will normally belong to the employer.  If the website is developed by a third party, make sure they assign copyright under the development contract, otherwise you may have only a right to use it, and not to license or assign the rights or sue infringers for copying it.  To assist in enforcement, make sure you put a copyright notice in a prominent place on the website (e.g. © 2012 Your Website Limited).

Clear Your Content

Make sure you own the copyright and all material you wish to put on your website, or have a licence to do so.  It is an infringement of copyright to put extracts of other people’s copyright works on a website unless you can claim a “fair dealing” exception in the UK.  This is narrower than “fair use” in the US and effectively only covers reporting current events.  “Thumbnails” of third parties’ photographs will infringe their copyright.  Lifting standard terms from a third party site can also infringe copyright.

Avoid Illegal Content

Apart from ensuring that your site does not infringe third party rights such as copyright or trade marks, it is important to ensure that any material you put on the site is not otherwise illegal e.g. if it is defamatory of someone.

Disability Discrimination

Since the passing of the Disability Discrimination Act 1995 (now embodied into the Equality Act 2010), website owners, broadcasters and others who provide services to the public have been under a duty to ensure their sites and services are user-friendly for those with visual impairment and other disabilities.  Although there are no clear guidelines as to what “accessible” means as far as a website is concerned, it is advisable to comply with the lowest level of conformance with the guidelines issued by the World Wide Web Consortium (W3C), which would include the following:

  • making a button available which increases the size of the text
  • ensuring that information conveyed in colour is available without colour
  • ensuring that the combination of background and foreground colours are sufficiently contrasted so as to be readable by someone with a visual impairment
  • making all elements of programming compatible with software which assists in the interpretation of websites, such as speech synthesis or Braille
  • for every non-text element on a site, making available a text-equivalent version
  • allowing the user to turn off any blinking, automatically updating, scrolling or moving objects

Use Effective Terms and Conditions

If your site involves any degree of interactivity, you should consider including suitable terms of use.  These should be in a prominent position.  Much of what is contained in standard terms of use involves an attempt to limit liability and such attempts are regulated by UK law, particularly where consumers are concerned, which can result in certain terms being held to be illegal by the Office of Fair Trading if a consumer makes a complaint.  Terms of use should always state the applicable law to which they are subject, but note that it may not be possible to prevent consumers suing in their own countries.

Formation of Contracts Through a Website

If you supply goods or services through your site, you should ensure that your customers have to agree to a standard set of terms of supply.  Where customers can enter into a contract through your website you must include clear details of:

  • the technical steps to follow in order to conclude a contract
  • the means of correcting errors in the order
  • the language of the contract
  • any applicable code of conduct

The customer must be able to access the terms and conditions and store and reproduce them.  The supplier must acknowledge receipt of the order without undue delay by electronic means.

Provision of Information

In addition there is certain information that you must provide under the Electronic Commerce (EC Directive) Regulations 2000, including:

  • the full name and address of the company or other person who is the website owner (a domain name is not sufficient)
  • email and other contact details (a ‘contact form’ is not sufficient)
  • if a company, the company’s registration number
  • if the company is subject to an authorisation scheme, particulars of the relevant supervisory authority, e.g. the Financial Services Authority
  • if you are a member of a regulated profession, your member state, profession title, details of your professional body and relevant professional rules
  • your company or business’ VAT number (even if the website is not being used for e-commerce transactions)

Distance Selling

Where the website involves the sale of goods or supply of services to consumers through the site, you must comply with the Consumer Protection (Distance Selling) Regulations 2000, which include a number of detailed requirements concerning:

  • the provision of information to the consumer
  • the statutory right of cancellation (with limited exceptions)
  • the requirement to supply the goods or services within thirty days

Privacy Policy

If the website collects personal information from individuals, you should include a privacy policy in order to comply with the Data Protection Act 1998.  In general terms, you must indicate the use you will make of any personal data and obtain consent for its use, particularly if you wish to use the details for direct marketing.  The privacy policy should contain details of:

  • who controls of the data
  • how the data will be used
  • to whom the information will be transmitted
  • whether the information is likely to leave the European Economic Area (or EEA)
  • the means of gathering information, including use of cookies (see also ‘Use of Cookies’, below)

“Sensitive Data” (e.g. about a person’s health or sex life) must only be collected if explicit consent to its use has been obtained from the data subject.  There must be a statement making clear that all subjects have a right to see the information held and there should be an opt-out box providing an opportunity to decline consent for the collection of information.

Use of Cookies

As a result of the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011, a website operator must not store information or gain access to information stored in the computer (or other web-enabled device) of a user unless the user “is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information” and “has given his or her consent”.

How you go about obtaining the consent of users is ultimately your choice.  Many organisations now use so-called ‘pop-ups’ to obtain such consent (see, for example, the Information Commissioner (or ICO’s) website at, so that it is sufficiently clear that consent has been given by encouraging the user to click ‘Yes’ or ‘No’, rather than simply referring the user to terms relating to cookies in a privacy policy, which may be hard for the user to find.  Failure to obtain sufficient consent could create problems with the ICO if a complaint were made.

This area is technically complex and we suggest you read the ICO’s guidance notes in detail in order to ensure compliance.

Online Advertising

There is no one source to go to for all rules relating to online advertising- it depends in what area your organisation or business operates.  E.g. if you are charity, there are specific codes of practice to follow in relation to online fundraising, in addition to the general body of rules underlying adverts, some of which are not legally binding and are ‘self-regulatory’.

The British Code of Advertising, Sales Promotion and Direct Marketing (otherwise known as the ‘CAP Code’) is enforced and administered by an independent body called the Advertising Standards Authority (ASA). When preparing an online advertisement, you should refer to the rules set out in the CAP Code. The key principles that online marketers should always bear in mind is that all marketing communications on the web or elsewhere should:

  • be “legal, decent, honest and truthful” and not include anything that is likely to cause offence. For example, is the advert likely to cause offence on the grounds of race, religion, sex, sexual orientation or disability?
  • not be misleading. You need to ensure that all claims in adverts are accurate, unambiguous and can be substantiated. Do you have evidence for any claims made?
  • be prepared with a sense of responsibility to consumers and society
  • respect the principles of fair competition generally accepted by business
  • not bring advertising into disrepute

The CAP Code is not a statutory code, but anyone can complain to the ASA about non-compliance, from which the ASA can adjudicate a decision.  The biggest incentive for organisations to comply with the CAP Code is that the publication of its decisions may lead to adverse publicity. The ASA can also require that all of an organisation’s adverts must be vetted in the future before publication.

Online Payments

Where online payments or donations are being taken, the payment processor must be ‘PCI compliant’ if taking card payments (a set of standards created by the Payment Card Industry, a conglomeration of several credit card companies).  Failure to do so can result in large fines and removal of merchant status, meaning that you will no longer be able to take card payments from customers until the processor meets the PCI standards of compliance.

© Brian Miller, Solicitor, 2012. This article may not be reproduced without the prior written permission of the author.

Brian is a solicitor at Stone King LLP.  For further news and information on legal topics of interest, please visit Brian’s other blogs:

Brian Miller Solicitor’s Games Law Blog
Brian Miller Solicitor’s IP Law Blog
Brian Miller Solicitor’s Privacy & Data Protection Law Blog


On 18 October 2012, the British Court of Appeal handed down its judgment in the dispute between Apple and Samsung over the design of three Samsung Galaxy tablet computers. You can read the full judgment here. The court unanimously upheld the decision of the High Court decision of 9 July that Samsung did not infringe Apple’s registered community designs relating to its iPad. Apple was also ordered to publish the outcome of the decision on its website.

Case History

This particular case related to the registered design of Apple’s tablet computer and whether the Galaxy tablet computers infringed that design. Proceedings started  in Germany and the Netherlands against Samsung’s UK subsidiary. In the UK, Samsung sought a declaration of non-infringement in relation to its Galaxy tablet computers. The matter proceeded to the High Court, followed by invalidation proceedings before the Office of Harmonisation for the Internal market (OHIM), the official office in Europe responsible for registering European designs, in respect of Apple’s registered community design.

The matter eventually ended up in the British High Court, where the judge at first instance assessed the similarities and differences between the two products and whether Samsung’s Galaxy tablet as a whole produced a different overall impression on the ‘informed user’ from that produced by Apple’s design registration, and concluded that it did. (The ‘informed user’ was deemed to be a user of hand-held tablet computers.)

High Court Judgment

Differences in the sides and back of the Galaxy including its “thinness” created an overall impression which was different from the registered design. The judge added that Samsung’s designs “do not have the same understated and extreme simplicity which is possessed by the Apple design” and they were “not as cool“.

Following the decision, Samsung sought an order for publication of a notice on the homepage of Apple’s website and in national newspapers stating that its Galaxy tablet did not infringe Apple’s community registered design. The order was allowed but as a result of Apple’s appeal of the High Court decision, its execution was stayed pending the outcome of the Court of Appeal hearing.

Court of Appeal Judgment

On 18 October 2012, three appeal judges upheld the decision of the judge at first instance. Apple’s application to quash the order for publication of the decision on its website and in publications was also declined.

The court made it clear that “the issue is simply whether the accused design is too close to the registered design according to the tests laid down in the law“: “It is not about whether Samsung copied Apple’s iPad“. The court agreed with the lower court’s findings, confirming that “if the registered design has a scope as wide as Apple contends, it would foreclose much of the market for tablet computers.  Alterations in thickness, curvature of the sides, embellishment and so on would not escape its grasp. Legitimate competition by different designs would be stifled“.

This decision, binding throughout the EU, is one of a number of judgments in a worldwide and lengthy battle between the companies relating to intellectual property rights in the parties’ smart phones and tablet computers and shows the relatively narrow scope being given by the English courts to design registrations.

© Brian Miller, Solicitor, 2012. This article may not be reproduced without the prior written permission of the author.

Brian is a solicitor at Stone King LLP.  For further news and information on legal topics of interest, please visit Brian’s other blogs:

Brian Miller Solicitor’s Games Law Blog
Brian Miller Solicitor’s IP Law Blog
Brian Miller Solicitor’s Privacy & Data Protection Law Blog