The Phorm "Webwise" System

[Nicholas Bohm]

Ian Batten wrote:
> 
> On 5 Apr 2008, at 09:44, Matthew Pemble wrote:
>> Ian Batten wrote:
>>>
>>>
>>> So the obvious move would be for a UK based competitor to one of 
>>> Phorm's advertising clients (not necessarily in the UK, as they 
>>> wouldn't need to be a party to the action) to bring suit against one 
>>> of the UK's ISP for passing off.  ``Whenever my client's customers 
>>> navigate to my client's website, they are served adverts for a 
>>> competitor.  This is done by systems owned by your client pretending 
>>> to be those owned by my client, without my client's consent and (for 
>>> bonus points) misappropriating my client's trademarks.''
>>>
>> But surely the client, Ganges Books, are a willing commercial partner 
>> in OIX, otherwise you wouldn't get a Phorm ad in the first place?
> 
> 
> No, the advert could be served with any site I visit subsequently. The 
> means by which I was identified as a recipient of Nile Books' advert was 
> the visit to Ganges Books' website, but the advert could be served when 
> I visit The Guardian.

I think the problem with claims of trademark infringement or passing off 
is that they depend on proving a misrepresentation that has somehow 
acted on the mind of the person to whom they are addressed.  One might 
be able to get past that problem if it could be shown that machines were 
normally set up so as to act in reliance on the truth of representations 
about the source of cookies.  Are we really at that point now?

(This is of course quite similar to the earlier argument about fraud.)

I am fuzzy about modern trademark law, but have some recollection of a 
decision that putting trademarks in metatags didn't count as the sort of 
use that amounted to infringement.  I cannot recall the reasoning, however.

Nicholas
-- 
Salkyns, Great Canfield, Takeley,
Bishop's Stortford CM22 6SX, UK

Phone  01279 870285    (+44 1279 870285)
Mobile  07715 419728    (+44 7715 419728)

PGP public key ID: 0x899DD7FF.  Fingerprint:
5248 1320 B42E 84FC 1E8B  A9E6 0912 AE66 899D D7FF