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Websites could be blocked on trademark issues

by on25 September 2014



Open rights group worried it could get out of control

ISPs are being asked to block websites based on alleged trademark rather than copyright infringement, according to the Open Rights Group. The ORG was commenting on a case 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’ trademarks for counterfeiting activity.

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 said that 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 permitted the ORG to intervene so as to make detailed submissions on how this novel jurisdiction should not be abused. In its submission to the Court, ORG said that its 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.

If a judgement was poorly worded, it could be used to try to block websites that use trademarks to legitimately criticise or parody well-known brands. Court blocking orders may also affect 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. ??

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