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Free speech, but nothing to say?

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

The IPKat has today received a copy of the ruling last Friday of Sonia Proudman QC, sitting as a Deputy Judge of the Chancery Division, England and Wales, in Pankajkumar Patel v Allos Therapeutics Inc -- a dispute in which human rights and trade mark collide quite dramatically.

Allos, an international biopharmaceutical company, owned US trade marks for the words 'Allos' and 'Allostherapeutics, Inc'. Unsurprisingly Allos operated the allostherapeutics.com domain name. Patel, a horticulturalist, did not trade in the pharma sector himself. However, he developed the habit of registering the names of companies -- including Allos -- as domain names. Unlike some grubby souls who only do it for the nuisance value and in the hope that they will be bought off for a juicy sum of money, Patel had a higher purpose. This was to wage ideological warfare against what he perceived to be the evils of the pharmaceutical industry, which he sought to expose. Patel's sites were acquired in the hope of directing internet users searching for the (evil) company in question to a website in the name of the company, in the form "trademark.tld", on which the company's logo was displayed. After he had a full view of the home page, the internet user would then be treated to a disclaimer or would come to realise that the site was unconnected to the target company.

In the case of Allos, the disputing parties had already agreed to an ICANN Uniform Dispute Resolution Procedure (UDRP), in which the panel upheld Allos's complaint and ordered that the allos.com and allostherapeutics.com domain names be transferred to Allos. Now Patel went to court and sought to have the UDRP process set aside on an unspecified ground under the Human Rights Act 1998. According to Patel, the panel's decision infringed his right to freedom of expression under Article 8 of the European Convention on Human Rights. Patel also alleged defamation, malicious falsehood and wrongful threats to sue for trade mark infringement. Allos, unimpressed by these lofty claims, applied for (i) the claims to be struck out on the ground that it disclosed no reasonable grounds of action or (ii) summary judgment on the basis that Patel had no real prospect of succeeding and there was no other compelling reason why the matter should go to trial.

Sonia Proudman QC granted Allos's application. She observed that freedom of expression was not an unqualified right: it had to be balanced against the rights of others, such as the rights of a minority not to suffer abuse or -- in this case -- the rights of a trade mark owner freely to enjoy its own rights and property. There was no way Patel could succeed: he used a domain name without offering any indication that it was a protest site; the site featured Allos's own trade mark. It was hardly free speech to use a domain name and trade marks that internet users would (and were intended to) associate with Allos in order to trick them. Nor wa there any active criticism, or link to any.

The IPKat says, oh dear, here's another litigant appearing in person who really had no chance at all. It's not as if he had taken the trouble to exercise his freedom of expression by saying something about Allos. This is not so much a plea for freedom of expression as a plea to be able to retain the media of expression until such time as something expressable occurs to him. Merpel says, the judge struck the right note when she said:

"He cannot accept that he is the aggressor, not the victim. He is not debarred from making legitimate criticisms of pharmaceutical companies nor from setting up proper criticism websites from which he and others might do so. Instead, he had chosen to usurp names and logos contrary to the UDRP policy".

Col d'Allos here
Val d'Allos here

Full post as published by IPKat on June 16, 2008 (boomark / email).