Cheeky Git!

[Andy Dingley]

I'm all for fair competition, but this is unfair - in particular the deliberate passing off by including "medway handyman" in his own site content.

It's not "theft", "copyright" nor "trademark" infringement. You can't steal something you don't remove. There's no copyright protection on a mere title. You don't (AFAIK) have a registered trademark.

So what you're left with here is "passing off", which in the UK has a key ingredient of "a misrepresentation which is calculated to deceive". Now particularly after last week's change that excludes the Gold/Schiffreen defence (a loophole that computers allegedly committed forgery on themselves, rather than culpability resting with the author of the false meta tag) this "medway handyman" meta tag is not merely similarity, it can only be clear intent to deceive. The purchase of the Google AdWords covering "medway handyman" are also strong evidence of this.

Use of the phrase "the Medway handyman", as well as "Medway handyman" but not "Chatham handyman" or similar is strong evidence of deliberate intent to pass off as, and to divert web traffic from, the established site of "The Medway handyman". However this is a legal irrelevance.

If you can find a library copy, Blackstone's guide to the Trade Marks Act 1994 is the usual law degree text on such things. Relevant case law is still Lord Diplock's "five elements" of the tort of passing off: a) a misrepresentation; b) made by a trader in the course of trade; c) to prospective customers or ultimate consumers of the defendant's goods or services; d) which is calculated to injure the business or goodwill of another; e) which causes actual damage to a business or goodwill of the plaintiff or is likely to do so.

Note the following points, as clarified by Lord Diplock: "misrepresentation" does _not_ require intent to do so. Nor does the damage need to be actual, merely likely.

So, you have a good case for a passing off action. What's to be done about it?

You can certainly expect to have the offending content removed. You also have a reasonable position to demand compensation for your costs in pursuing this action. Your likelihood of compensation beyond this is minimal though.

If you choose to pursue this with lawyers, then you have to dig into your own pockets first and hope to be reimbursed. If your likely achievement (even with a lawyer) is no more than to have the content removed, then a simpler initial step could be to act on your own behalf. Write to the parties concerned and request that they remove the offending content and pay you some nominal amount to cover the costs, perhaps =A3450 8-) These costs may well be waived later in the process of mutual horse-trading, although you certainly don't need to put that idea forward yourself. The targets for this letter could be hard to track down, so I'd suggest the domain registrant Derek Dowding, and also their ISP who hosts the offending content and their domain registry. After all, Mr Dowding has declared himself to be a non-trading individual and I'm sure the domain registry would wish to correct their records. There are also a number of web sites linked to the "Kent handyman" site and perhaps they might be able to assist you in tracking him down? (although Kent Metalworks is the same registrant, contact email and phone)

[The Medway Handyman]

Errrm. You did.

[The Medway Handyman]

Andy, thank you so much. I have enough info here to scare the sh*t out of him. I owe you a pint.

[Lobster]

Dave, have you seen this one? No 1 hit when you google for "Medway Handyman":

[The Medway Handyman]

Actually, I think he would agree that you are a complete f****it. JMO.

For the record, I'm happy to abuse f****it's like you 24/7.

[Steve Firth]

And where would that be? Come on, it can't be hard to show where I did such a thing, if I did.

[djc]

Using "THe Medway Handyman" in meta tags could be regarded as passing off, though not a strong case in itself. If he has copied chunks of your site word for word then that is breach of copyright. As is noted elsewhere in this thread, if the site is commercial then the nominet registration cannot conceal the domain registrant's address

[Dave Plowman (News)]

This group would be very much worse off without the pros that contribute to it. The *true* pros, obviously.

[Dave Plowman (News)]

Don't be a pillock, Steve. By quoting only one person in your post you're referring to that person by default. If you meant the post to be general, no quote was necessary.

[Steve Firth]

Hmmm, YANAL. I can't see that the case is as clearcut as you are trying to make out.

He does use "The maidstone handyman" and the use of the Google adwords "medway handyman" is no more suspicions than the use of "kent handyman" "maidstone handyman" etc.

There's no evidence where it matters of attempts to pass off, and I think a lawyer would struggle to make a case that key words inserted where a user cannot see them without some effort is an attempt to "pass off".

[Steve Firth]

Umm that's not passing off, nor is it the No. 1 hit. It's simply a sponsored link that appears when you put in the keywords "medway" and "handyman".

I'm not convinced that a case of passing off will succeed against the other bloke either. He's using the search terms to trap searches, but he does not represent himself on the site as "The Medway Handyman".

It may be possible to persuade him to stop using the search terms, but I can't see that if he drops "The Medway Handyman" from the metadata that it will make any difference to a search. Nor can be stopped from using "medway" or "handyman" in the metadata. No more than Microsoft can take action against Apple for talking about windows in relationship to software.

[Steve Firth]

I'm glad that you have found a little chum.

Good for you, I hope it makes you happy. And the irony of being called a f****it by a man who would have difficulty finding his arse with both hands is not lost upon me.

[Steve Firth]

What a silly comment, my comment makes it clear who an I referring to and guess what, it wasn't "Dave" nor was it his alias "The Medway Handyman" before you leap to another incorrect conclusion. I suggest that one person and one person only might try sneaking in here as his next attack upon decent net citizens. But it is funny to watch the lot of you leaping to the wrong conclusion.

Even more funny to be called a f****it by someone who couldn't find a clue even if they were given "The Observer's Book of Clues" for Christmas.

[Andy Hall]

Passing off is certainly defensible.

The other thing that you may want to consider is registering a Ltd company if you haven't already registered a business name. This is not a very expensive exercise and gives you a legal entity in case of dispute - i.e. adds to the case. If the other character does it, you would have a weakened position.

At the end of the day, though, you have to decide on how much time effort and cost you want to spend on defending the name. It has value, certainly, but recognition comes out of awareness as does business, rather than dropping pound notes into lawyers' pockets

[Andy Dingley]

Sorry, I wasn't aware that the law didn't apply to those who aren't.

As I posted, this is actually an irrelevance. Although indicative of intent and the source of his inspiration, the question of intent simply doesn't apply to passing off.

So where ought it to matter then, if this isn't it?

The deliberate indexing of the "kent handyman" site under terms relevant to the pre-existing medway handyman can be demonstrated to divert search traffic, and the beneficial placement of search result listings, away from the medway handyman site. This is likely to injure the ongoing goodwill of the medway handyman site and business.

It's not a question of "misleading a user", it's legally a question of likely damage to goodwill by diversion of custom, and search engines are clearly part of that in today's business climate. As you thankfully point out, I'm not a lawyer. I'm not up to date on legal precedents and whether any such case has already been decided. But within the framework of decisions to date and their ready adoption of new technologies and business practices as they arose, there is no basis to say that search engines would be ruled an irrelevance.

[John Rumm]

nightjar He is higher on sponsored links, but I've not found those to be worth

Indeed myself included, but enough people must value them to get pouring money into google at the rate they do!

I wonder if these are "pay per click" sponsored links... Just as well we have not all clicked on the google link, it might use up all his adwords budget.

[Steve Firth]

I didn't make any such ludicrous claim. The law applies to you, me and to anyone else who has not completed a law degree. However an opinion from you is no more authoritative than an opinion from any other non lawyer.

I didn't comment on intent, I commented on the suspicion (of passing off). He may be passing off, but I don't see that putting "the medway handyman" into search data is an attempt to pass off as "the medway handyman", and as I pointed out he has covered many bases.

It would matter a great deal more if he had made an attempt in the displayable HTML code to pass himself off as The Medway Handyman.

Really? I don't agree with you, I don't see that it follows that is the effect at all. Indeed, the first listed site on a search for "Medway Handyman" remains "Dave"'s site. So it's not clear cut at all that search traffic is being diverted.

If it can be demonstrated that this is happening then that would be true. However it doesn't appear to be happening quite as you describe.

Nor did I say it was. You are forgetting this point:

c) to prospective customers or ultimate consumers of the defendant's goods or services;

There's a need to prove that the passing off is to prospective customers or to ultimate consumers. The use of the search term in a form that is not displayed to prospective customers or ultimate consumers may weaken that test, especially if as has happened the use of the term does not put the offending website into prominence.

Can you cite a precedent that supports your view? That is, can you cite a precedent that the use of terms in metadata tags that contain terms used by another business may be regarded as passing off? I can't think of a case, but then I don't do this sort of work. The law practice for which I sometimes work does do such things and I certainly think that if they or another practice of substance in this field were to represent the website owner in question that matters would not be as cut and dried as you imply.

Sorry missed this until now, so we can both agree that it's more in the balance than you indicated in your first reply?

Or to say that they would automatically be ruled as relevant. Dave may have a case, he may have the means to pursue it. He may be able to intimidate the thicky setting up the website with suitable jargon that makes him sound knowledgeable. But if the person decides not to throw up his hands and say "it's a fair cop" than Dave may well have to dig into his pocket and get expert opinion and may be looking at expensive litigation.

If that happens I don't see it being clear cut at all. I would guess that "The Medway Handyman" is not a registered trademark, nor yet is it the name of a Limited Company, nor I would guess has he even taken the precaution of putting his trading name or the copyright works on his website into escrow in some form, such as the sending of witnessed copies by registered post.

I'm not saying that your input is not valuable, I am however saying that it was IMO more emphatic than is warranted by the facts in this instance. Daves claim on the name is, I suspect, weaker than he thinks. The offender's use of the terms is not as clear cut an attempt at passing off as you make out, particularly given how it was done, and more importantly to whom (or rather what) it was done.

[Steve Firth]

Registered with whom?

[Bob Eager]

Yes...but no need to involve you. Two of us have already done it!

[nightjar]

It depends on the business you are in. I found that, at 20p per click, it cost me at least £8 to get a conversion - one slow week conversions cost me £50 each - and, for that to pay, it had to produce repeat customers, which I had no way of checking. A chap I knew who sold marine gear was happy to pay for Google Adwords, as the profit on one sale would more than pay for the conversion costs.

Colin Bignell