94 states that there will be an infringement of a trademark where a identical or similar mark is used (The likelihood of confusion/association test) or where unfair advantage is taken of an established trademark, or where the identical/similar trademark is detrimental to the distinctive character/reputation of the trademark. In addition to the statutory offence, the common law offence of passing off my be applicable in the case of an unregistered trademark or well known brand name. It is basically an example of an unfair competition law. The case of Erven Warnink v. Townend identified a number of criteria that are required in order to prove the offence, viz.
Misrepresentation
By a trader as a trader
To prospective customers/ultimate customers
Calculated to injure the business/goodwill (reasonably foreseeable)
Causes actual damage or will probably do so
Further examples of trademark issues are illustrated below. In the US case of Playboy Enterprises v. Welles of 1998, the plaintiffs objected to the use of the word ‘playmate’ as a meta tag by a former Playmate of the Year. The court held that this was no more than an accurate description. See also Playboy Enterprises Inc. v. Calvin Designer Label and Playboy v. AsiaFocus International.
Directories and subject guides are human complied lists of internet sites and may create similar concerns to search engines.
Hypertext linking
Hypertext linking is 英语论文网 【http://www.51lunwen.org】the method by which you can click on an underlined word and be taken to another internet site. There are a number of different ways of linking.
General linking is where it is obvious that the linked document is entirely separate fro the linking document. General linking can subdivide into surface linking where the user is taken to the homepage of the website and deep linking is where the user is taken to a link deep in the home of the webpage. This latter type of linking may cause financial loss to the website since visitors to the site can bypass any advertising contained on the front page. Advertisers may then of course re-negotiate the terms of the advertising contract or indeed decide to pull out of advertising on that page completely. The Scottish case of Shetland Times Ltd v Dr. Jonathan Wills and Another involved the use of hypertext linking. The Shetland News took a selection of headlines from the front page of the Shetland Times’ web page and used them as hyper-text links to the stories in the Shetland Times. Therefore by browsing the Shetland News’ page the accessor could make simple links to the times’ stories, read them and back space to the News’ web page. The Times sought an interim interdict – the Scottish equivalent of the English interim injunction. The case was settled out of court. The first legal decision to decide that a hypertext link, per se, could be an infringement of IP law was the Dutch case of Church of Spiritual Technology v. Dataweb.&nb
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