Sunday 17 May 2009

That Chilling Effect – blogs and legal threats

What a marvellous world without frontiers the Internet has brought. It has enabled direct marketing campaigns, worthy and unworthy, from any point on the globe, targeted at anyone whose details are available online. Patent Offices everywhere report public confusion when such campaigns are targeted at IP applicants. Regulating such campaigns has proved difficult, and it seems that governments (at least in the UK) want little part of it.


In the absence of regulation, consumers depend on information. As the newspaper business collapses, the news is increasingly coming to you from sites like this one, or better, or worse – which are themselves unregulated, sometimes anonymous, often full of vitriol and inaccuracy; a pack of wolves rather than a well-trained watchdog. To eat a wolf requires a shark, and media law has its share of law firms who take a case on a conditional fee basis for whom, under English libel laws, an unwise blogger is easy sharkmeat. The chilling effects of such law firms were described by the Media Law Resource Centre (amongst others) in evidence to the House of Commons Select Committee on Constitutional Affairs.


For the first time I recall, a UK IP blogger (Shireen Smith, founder of 2005 startup law firm Azrights) has been threatened with legal action for a blog posting on her corporate blog). Adding a certain piquancy to the dispute is that the letter before action comes not from a libel firm but from a lay client, and is addressed to a lawyer who trained in journalism, and practised in media law for a news company.


Whilst the effect of such threats is to dissuade discussion of the subject of the posting, we cannot duck looking at the dispute itself as news. As to the content of the posting itself, this article will make no kind of sense if you don’t look at it, but all the information you need to form your own views is on the internet, and whilst we sympathise with the author, we do not repeat her views nor necessarily accept them. We are also posting some links here; it ought to be abundantly clear that we don’t accept the content to be true – a theme of this article is that you should never believe all you read on the Internet.


So, what’s the dispute about? The aggrieved party is the subject of the posting, Community Trade Mark Filing Service, whose practice it apparently is to write to UK trade mark proprietors enclosing a pro forma invoice, offering assistance with filing a CTM. Their website does make it clear that they are not connected with OHIM or the IPO. Does this per se condemn them? Of course, there are dubious companies who post invoices without knowing whether the services concerned will be required, but renewal agencies do that too (though not on an unsolicited basis, I think), so the answer has to be, not without knowing more.

What they apparently offer for your money is a CTM form completed (based on your UK filing information) and sent back to you, in triplicate, for you to file at OHIM (making your own arrangements to pay the fees) using a supplied addressed envelope. There is an indication on their website that they have a panel of trade mark attorneys, and if you get into trouble they can appoint one for you and, apparently, will pay the first £1500 of their fees.


Clearly, that business model leaves more work and risk with the client than using a traditional trade mark attorney firm would do. However, that doesn’t per se mean it is illegitimate. Many are now looking at new business models for IP filing – amongst them, perhaps, Shireen Smith herself, who has something resembling a panel model in mind: she says “I am constantly thinking about how Azrights can provide affordable legal services for start ups and smaller businesses. One way we are doing this is by using a network of experts rather than carrying expensive and highly qualified lawyers and attorneys on our payroll.”


Let’s get to grips with the background. Shireen Smith has posted the two page letter before action on her site. Although it is on the headed paper of Community Trade Mark Filing Service Ltd, it can be seen to have been sent from the fax of Switch Media. Who is C K Evans, the author of this frightening epistle? According to company director records on www.192.com, he seems likely to be "CHRISTOPHER KEVIN BARRY EVANS, 28", a Director of Switch Media plc and Community Trade Mark Filing Service Ltd.


On the CTMFS website www.ctmfs.co.uk (to which www.ectmf.co.uk also points) ... well, let’s first deconvolve those acronyms. You’ve already guessed CTMFS to be Community Trade Mark Filing Service, and I think ECTMF must have been European Community Trade Mark Filing, until someone realised that people don’t call them ECTMs. Anyway, according to the front page of the website, “CTMFS and ECTMF are trading names of Community Trade Mark Filing Service Limited a Company Registered in England No 6673037. VAT Reg No. 947 4144 08" Easy enough? To complicate matters, however, according to the Terms & Conditions page, “the Company - means CKBE Ltd t/a CTMFS (Community Trademark Filing Service) a Company Registered in England No. 5398128 or Community Trade Mark Filing Service Limited t/a CTMFS a Company Registered in England No. 06673037.”


So who are CKBE Ltd? Well, it is perhaps not too wild a guess that it stands for "CHRISTOPHER KEVIN BARRY EVANS”. It has not always been called CKBE; previously it has been:
07/07/2005 CHRISTOPHER N EVANS LTD
20/06/2006 EVO ADVERTISING LTD.
14/11/2007 DUALITY MANAGEMENT LIMITED

While we’re on the subject of Christopher N Evans Ltd, according to www.192.com, our Christopher K B Evans has two listed addresses as director: firstly: PRESTON STREET LIVERPOOL MERSEYSIDE L1 6DP, and secondly 67 TOWER BUILDING 22 WATER STREET LIVERPOOL MERSEYSIDE L3 1BH. The Preston St address appears to have been 6 Preston Point, Preston St, which was also the address of several other companies including C N EVANS LTD, struck off the Register of Companies in May 2007 (like some of the other companies below). There was another company of the same name, dissolved in 2005 – I have no idea whether they were connected, or whether Christopher N Evans is connected to Christopher K B Evans. The property was recently on the market; very nice!


Community Trade Mark Filing Service Ltd has not always been thus named either. Previously, it was
12/03/2009 ECTMF LTD


I hope you’re still following this – there’s more to come. Now, as these are new companies, we ought to take a look at Switch Media, on whose fax the letter was sent. This isn’t quite as straightforward as it seems, as there are a couple of companies by that name. Well, actually, more than a couple. This is probably an incomplete picture, but there appear to be:
4510647 SWITCH MEDIA PLC
5928713 SWITCH MEDIA DESIGN LTD
6031789 SWITCH MEDIA HOSTING LTD
5642405 SWITCH MEDIA (IRELAND) LTD


The plc looks to be the holding company. At the same address, however, and also featuring Chris Evans as a Director, is SM Nominees (and yes, I guess SM might stand for Switch Media). There have been more – the dear departed include the following at least:
5803313 D SWITCH MEDIA (GLOBAL) LTD Dissolved 19/12/2006
5995528 D SWITCH MEDIA (NOT IN USE) LTD Dissolved 13/11/2007
5934837 D SWITCH MEDIA SHELFCO1001 LTD Dissolved 08/05/2007
5934841 D SWITCH MEDIA SHELFCO1003 LTD Dissolved 24/04/2007
5934838 D SWITCH MEDIA SHELFCO1002 LTD Dissolved 24/04/2007
3977089 D SWITCH MEDIA (UK) LTD. Dissolved 20/05/2007


Oh well, companies do come and go, and when they go, as Switch Media put it, “In the unfortunate event of the company becoming insolvent and unable to pay its debts when they fall due, the Creditors of the company can not seek payment from the shareholders or members directly.” No one other than the creditors gets hurt, because “although it also protects the liability of its members or shareholders, it is also protecting its Directors or officers as they are often called.”

There are also several other companies, living and dead, which have shared addresses with those above; they might or might not be related. Of all these entities, Switch Media plc is a well established Liverpool internet company, founded in or before 2002 by Chris Evans and the Creative Director Aaron Bimpson (yes, really). According to the company records on www.192.com (for the completeness, accuracy or currency of which I cannot vouch), they list 31 employees, a sales turnover of over £1M and ... well, form your own view about the profit figure.


They have been successful and well respected, “ranked as Britain’s 18th fastest-growing company” according to the local Liverpool press in 2007. They fund and sponsor a range of creative events in Liverpool. They offer both domain registration and hosting services and web design services, and probably a range of other internet-type things. For this they appear to have had a good press and a generally satisfied customer base – though there are complaints – see for example the comments (both good and bad) at these sites, which are evidence only that the opinions stated exist, not that they are true:
· http://www.reviewcentre.com/reviews152915.html
· http://www.webdevforums.com/showthread.php?t=11234
· http://www.complaintsboard.com/complaints/switch-media-c147261.html
· http://www.trickery.net/vb/showthread.php?t=13295

They list their advisors on their website (don’t you hate it when the client uses you to validate themselves?), as follows:
· UK Legal: Halliwells LLP, DLA Piper UK LLP
· Ireland Legal: Beauchamps
· Financial Advisers: Grant Thornton UK LLP

At some point, they diversified into company formation. The motivation is on their website: “Forming a Limited company in the past required lots of paperwork and set forms, which ultimately required signing off by a Solicitor before being accepted by Companies House. Due to advances by the government seeking to reduce paperwork and make as many services online as possible, amendments to the Companies Act have allowed Companies House to develop an electronic document gateway.” Despite the mangled syntax, you get the idea – it’s all easy now, so cut out the professional, do it direct. Moving into companies may have led them to direct marketing of newly-formed companies in Ireland, for which see these links:


This evidently went down badly in some quarters, and in response to criticisms on the Internet, yes, you’ve guessed it, they threatened legal action, apparently successfully:

So, on one view we have a substantial group of companies moving on an arc through domain registration via company formation to trade mark consultancy, which is not and never has been a regulated business, and defending themselves aggressively and successfully on the web. After all, sending out advance invoices is not per se an offence, if you steer clear of the Unsolicited Goods & Services Act 1971.


Further, there isn’t anything automatically suspicious about operating webs of related companies, and perhaps it comes naturally to a company formation business. There is also probably an innocent explanation for the fact that a very lawyerly letter was sent out by a layman rather than the company’s lawyers – perhaps it is bad form for one firm to threaten another (Question: why don’t sharks eat lawyers? Answer: professional courtesy), or perhaps it is merely the fact that Michael Harrison, now of Azrights, was over 1990-1995 the head of the patent and trade mark filing business (now long abandoned) at DLA.

So is this any more than a spat between two competing service providers both targeting UK SMEs in an essentially unregulated industry? Do CTMFS and Mr Evans have a legitimate beef that a competitor is using a corporate blog to diss the competition? Well, up to a point, Lord Copper. Dear Reader, we wouldn’t presume to tell you which of the pair you would give your business to (remembering that there are alternatives). It is interesting to note that Switch Media have themselves filed a number of UK and Community Trade Marks, and they have had the sense to use W P Thomson, a well-respected and long established firm of patent and trade mark attorneys, to represent them on most of their UK filings and all of their CTMs.


But this article is not about who you should use to file trade marks. Shireen Smith appears to have used her blog on this occasion to raise in good faith a consumer concern, and whether she is wholly correct (which appears, alas, to be the necessary standard to defend this kind of action) or not, I think it was good to air the matter. Perhaps a print journalist would have offered CTMFS a chance to comment in advance – I don’t know. But they certainly could have commented on her blog, or the others that have raised the standard on her behalf, or on their own site. The time spent on threats would have been better spent on explanation, or rebuttal. They may find that people draw unintended conclusions from the stance they have taken, and that the case (if they do go through with it) generates less good publicity for them than they would hope. In the absence of regulation in this sector, we have to stand with the phrase attributed to Voltaire: “I may disagree with what you say, but I'll defend to the death your right to say it”.

Posted by at No comments:
Subscribe to: Posts (Atom)