Small print could soon be a thing of the past

From Outlaw.com 19/11/07:

"Information requirements are an irritant for business and consumers routinely ignore the small print overload because it is turgid and confusing, according to a Government study. A new report calls for a rethink by policy-makers and businesses.

Consumer[s]... are not necessarily making informed decisions [about purchases] – meaning it is unlikely that regulated information is having a major impact on their behaviour."

The study further found that, "Consumers ignore the detail, especially when making spontaneous decisions, for example, when being offered a store card at point of sale. Low literacy groups said the small print was scary and humiliating. Other groups were blasé about ignoring the contract detail, describing it as unimportant and boring. When prompted for their reaction to wording such as "The Consumer Credit Act 1974" people "glazed over", according to the researchers. A representative response: "What the hell is the Consumer Credit Act 1974 anyway?"

I know how they feel, particularly having studied the monster in my Consumer Law module as an undergrad. Just kidding. The bottom line here is that something MUST be done about the issues relating to small-print - its ineffectual, pedantic and frankly, not fit for purpose. The idea of using layman's terms, flow diagrams, symbols and colours is a good one. Better education of the salespeople in relation to the goods they are selling and how they are affected by the CCA wouldn't be a bad thing either.

A simpler or alternative redrafting of the Act for reproduction in contract documents actually issued to consumers would perhaps be in order too. Of all the Acts out there, sections of the CCA, must be amongst the most commonly read by consumers and its wording should reflect that. Going even further, maybe businesses who sell products pursuant to the CCA should be required to produce an additional help-sheet providing a simplistic breakdown of information relating directly to the type of goods they sell and how it will affect the consumer's purchase. After all, if obligations are going to be imposed on businesses to conform to the CCA, they might as well be effective and worth the time and effort of implementing.

If you go down to the shops today...

On Friday whilst on a casual jaunt through town, my girlfriend and I were stopped in the street. Nothing strange in that you might think, but this was no ordinary street encounter. We were intercepted by 3 men: one costumed in large bright pink pig outfit, the other in a Tigger, the third, more unremarkably attired, sported a camera and clipboard.

Caught off-guard by such creatures inhabiting the street (and previously having my attention dedicated solely on browsing round the German-style Christmas street market, giggling at the sign for the ‘wieners’ being sold) we were initially nonplussed. Getting my wits back, I quickly smelt a rat. Well a pig and tigger, actually. After all, whose warning antennae wouldn’t go into overdrive and detect something dodgy afoot when suddenly advanced upon by a giant pig and tigger?

It turns out they were trying to sell us some crappy personalised Christmas card and calendar deal, the quality of which was easily rivalled by that of the typical creations of a reception class in an average primary school. In short, I quickly turned down the deal and left wondering quite what the hell pigs and tiggers had to do with Christmas, as well as what new lows people would sink to in making a buck in time for Christmas. It was only later (and seeing Geeklawyer’s comment on a mannequin’s penis) that I wondered out loud whether a pig and tigger could be validly charged and convicted under s5 of the Public Order Act 1986 in respect disorderly behaviour ‘in sight of a person likely to be caused harassment, distress and alarm thereby’. I mean, after all, who isn’t going to be caused harassment, distress and alarm when ambushed in broad daylight in the in the shopping street by a human sized pig and tigger?

Sonogram + MP3 = Trademark Registration

From: Outlaw.com 23/11/07

A sound can be registered as a trade mark if it can be written in musical notation. But a sound like Tarzan's yell can also be registered if a graphical representation is accompanied by an MP3 file, according to Europe's trade mark registry.

I very nearly blogged about the whole Tarzan-yell trademark issue when I first came across the story a few weeks ago. Registration of the sound by way of Sonogram was rejected, I thought, on logical grounds following well-established principles of TM law. This was so in spite of the accompanying guidance: ‘sustain, followed by ululation, followed by sustain, but at a higher frequency, followed by ululation, followed by sustain at the starting frequency…" Lot of help, that is.

In 2005, however, a crucial development occurred in this area of TM law. Since then, the Office for Harmonisation in the Internal Market (OHIM) can register sounds represented graphically by way of a sonogram AND an mp3 file. So there you go.

Given that Tarzan’s yell is now capable of being registered and recorded as the sound itself (as distinct from musical notation) it’s perhaps only a matter of time before other jungle creatures follow suit. Maybe Janice Dickinson will seek TM protection for her now infamous primeval phrase ‘OH MAAANNNN!’ from the deep dark depths of the Australian jungle.

Too Little, Too Late?

From: vnunet.com 16/11/07

UK Information Commissioner Richard Thomas has argued for much tighter data protection laws in Britain, insisting that those who lose data should end up in court.

Thomas told the Lords Constitution Committee that those who knowingly or recklessly flout data protection rules should be prosecuted and fined up to £5,000.

"If a doctor or hospital [employee] leaves a laptop containing patient records in his car and it is stolen, it is hard to see that as anything but gross negligence," Thomas told the Lords. "The Commission can currently issue enforcement notices, but these do not impose any element of punishment for wrongdoing." Thomas suggested that one-off cases should not be prosecuted, but that systematic abuse needs greater censure. He also proposed that companies should be inspected without warning for data security, rather than the current system which relies on consent.

Clearly something isn’t working with regard to the UK and its data protection. The current frequency of blunders such as the one seen with HMRC and the missing CDs is almost beyond belief. From banks dumping customers’ records in black trash bags and sticking them out on the street for collection to laptops containing valuable data being stolen nearly every other week, something in the data protection system is very clearly wrong. What’s more scary, perhaps, is that such stories which come to light might only represent the tip of the iceberg. Worst still is that without a substantial change in the law and the powers afforded to the Information Commissioner’s Office, there is little hope on the horizon that such ‘trainwrecks’ will become a thing of the past.

Return of the Pesky ‘Craplets’

I hate the free offerings that software companies and OEMs foist on the unwitting public comprising of bloatware, craplets, sh*tware – call it what you will. Naturally, most at risk are the inexperienced computer users who, despite the publicity campaigns and security advances in software, still somehow mange get their computers extraordinarily infected with the STDs of the computer world. Instead of tottering off down to the Clap-clinic, though, a trip to the local PC World is usually on the cards.

I’m continually amazed by the amount of toolbars and other crapware that derive from various well-known search engine companies etc. that I see stubbornly installed in the browsers of people who should know better. My continual warnings, it seems, fall incessantly on deaf ears.

Let’s take a typical toolbar situation, which I ran into a couple of days ago with one of the PC’s I ‘manage’. An undisclosed computer ‘user’ unsuspectingly succeeded in getting a whole crapware suite downloaded and installed to their PC despite me having cranked up ZoneAlarm OS firewall to the highest level known to man, short of locking down the PC with a guest user-account. As well as the toolbar, there was an instant messaging and a download manager to boot. My hatred of such things is profound and the reasoning behind it, simple: they take up precious screen real-estate, system resources, and slow down boot time considerably.

Well, the said user wanted to access a certain site which required a map to open up in a new window. This necessitated turning the blocker off, or at least temporarily allowing pops-ups for that site. Having been previously able to view the map in this way without difficulty, the user was baffled as to why it could no longer be accessed; ostensibly the new window WAS being blocked, despite the pop up blocker being disabled in respect of that site. To cut a long story short, I eventually discovered that the user had unbeknownst to me installed the aforementioned suite of crapware including a toolbar incorporating its own pop-up blocker that was causing the problem. Seriously. Some people are just a law unto themselves.

Bloggers Beware – use company logos at your peril!

From OUT-LAW News, 12/11/2007

A US blogger who reported on a court ruling has been ordered by car rental firm Avis to remove an image of its logo from his blog posting to avoid charges of trade mark abuse.

Eric Turkewitz is a lawyer who writes a personal injury blog. In a recent post he discussed a ruling on the constitutionality of car rental firm immunity from some kinds of negligence suits. He illustrated the story with pictures of the logos of leading firms Hertz and Avis but was told by Avis's lawyers to take down the picture.

A comment on the blog from Fred Grumman, associate general counsel at Avis, said: "we have the greatest respect for your right to express your opinions on your blog, but that does not include the right to use Avis' trademark as you have done in this particular piece."

"Understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice. We ask that you remove it immediately and refrain from any similar use in the future."

As it happens Turkewitz himself doubted whether he had actually violated their TM and quite frankly, I can’t see that he has. Using the logo to illustrate and accompany a post related to the business sector of that company can hardly be said to be using that trademark ‘in the course of a trade’ – a crucial element for a TM infringement to be made out.

Under English law, it’s difficult to argue that such use of a mark in any way prejudices the owner for the purposes and nature for which trademarks are granted. Turkewitz merely used the mark for ‘illustrative’, that is to say, ‘descriptive’ purposes, which is thus covered by an exemption to infringement as seen in: Bravado Merchandising Services Ltd. v Mainstream Publishing (Edinburgh) Ltd [1996] FSR 205.

With such little credibility attaching to the trademark infringement argument, Avis could try making a copyright infringement stick; such a claim makes far more sense than this 'trademark violation' business. Here, though, the ‘fair use’ defence may apply which is more generous that than its English counterpart, ‘fair dealing’.

As it stands, Turkewitz has left the ‘offending’ graphic in place and adopted something of a ‘wait and see’ policy, I guess. For the record, I’d have done exactly the same and hope these ridiculous allegations of infringement soon die the death they deserve.

Murder without a body

There are occasions when the gaps in my legal knowledge are brought embarrassingly to the fore. Tonight, for instance, quite out of the blue, my girlfriend posed the very good question, “if no body is found, can a person be tried for murder?” I had to readily admit that I wasn’t quite sure – despite giving an erudite and scholarly ‘err’ while I paused for thought. Despite the fact I could reel-off without hesitation the common law definition of murder and give a knowledgeable and plenary précis of the law surrounding each constituent element of the crime, I didn’t know the precise answer. Needing some follow-up to my learned pause, I mumbled something about it being an ‘evidential issue’.

Thinking it through, I wasn’t aware of a case which out rightly proved or disproved whether a body was required for a murder charge to be made out. Naturally, I turned to Google to help.

I quickly discovered some background info and the age-old Camden Wonder case in the 1660s which established the ‘no body, no murder’ principle which was in existence for over 300 years.

The case of R v Onufrejczyk [1955] 1 All ER 247 categorically confirmed, however, that a charge of murder can be proved by circumstantial evidence, despite the fact no body is ever found.

Get me to the lecture on time

Why is it some lecturers seem to have an innate propensity for turning up late at almost every single lecture? This has long been a pesky grievance of mine as an undergrad but now at a different university and on the LPC, there is one lecturer in particular who insists on being spectacularly late for virtually all lectures and workshops. Strangely, though, I seem to have accepted his tardiness as normal service – much more so than some of my fellow students. The said tutor is, after all, by far and away the best lecturer on the course and I’m still massively pi*sed that his elective module isn’t ‘running’.

In defence of one of his late appearances, he openly and freely admitted that he was strolling along casually, enjoying the 'beautiful day' and suddenly realised he was going to be 20 minutes late and had to 'get a move on'. Another time he put it down to having to drive 'across country' and the fact he strolled in 25 minutes late was due to the fact it took him 'longer than he thought it would'. So there you go. It's gotton so bad, that some students are pre-empting his lateness by arriving around 15 minutes after it was due to begin. I tried that once. And yes, you guessed it – he was early!

The 'Lottery' of Limitation

From The Times 7/11/07:

The woman, known as Mrs A, should now be able to claim compensation for the attempted rape in Roundhay Park, Leeds, in 1988, her lawyers say.

Mrs A's attacker, Iorworth Hoare, originally from Seacroft, Leeds, had not been worth suing until he won £7 million on the Lotto while on day release from prison in 2004.

The law lords have indicated that they plan to allow an extension of the limitation period - enabling Mrs A and others to press for compensation, according to her lawyers.
The law lords had been planning to hear evidence from five different cases, but after hearing the key issue have indicated that they can reach their decision.

Although most claims for damages for physical or psychiatric injury now have an extendable three-year limitation period from the date of the claimant’s “knowledge”, claims for damages arising out of an intentional sexual assault have a non-extendable six-year limitation period from the date of the assault or the claimant’s 18th birthday, if that is later.

What’s interesting here is what the court will decide to do about the length of the period – what should it be extended to exactly? Should it mirror the Personal Injury principle and be extendable at the court’s discretion to 3 years from the cause of action or from the date of knowledge of the cause of action with the long stop of 15 years. And what torts exactly will be covered by this extension of the limitation rules? Will it extend to all the intentional torts and if so to the same extent? Let’s hope that these questions are at least summarily addressed by their lordships in their judgement.

Can I interest anyone in a packed lunch?

Luckily, my formative assessment in the interviewing and advising module went swimmingly on Tuesday with one exception. About half way through, 2 air-heads walked in trying to sell us packed lunches. My assessor, clearly unimpressed, hissed back at them through gritted teeth, “we’re actually trying to conduct an interview in here”. They backed out immediately murmuring the requisite ‘sorry’ and were never seen again. Well not by me, anyway. Interestingly, though, on my way out I noticed that the two crates of packed-lunches had been left in the corridor by the entrance to another room with no-one in the vicinity. If I was of more questionable character, I could have swiped one and hidden it under my coat to munch on later. Being the fine, upstanding citizen that I am, I didn’t.

Naturally I regretted it later. Talk about a wasted opportunity.

Between the red thing and the other thing

The planned trip to the fireworks and bonfire last night went, for the most part, smoothly enough. Despite me having an appallingly bad sense of direction we made it in good time, thanks in no small part to my girlfriend’s unwavering ‘inner-compass’. Right on cue as we were leaving, there was the traditional drizzle which was more precipitation than it was ‘firework detritus’.

The bonfire went off with a bang, the fireworks even more so and were pretty good on the whole – there was no admission fee, after all. Naturally, once they had finished, everyone made straight for the exit, resulting in a stadium-style crushing match. It did mean that I heard the best one-liner of the night, though. In the pandemonium of the rush for the exit, as the hoards of firework-watchers trampled through the already fit-to-bursting fairground, one woman with a mobile phone clamped to her ear, tried to articulate her position to the poor caller on the other end: “I’m between the red thing and the other thing”. Very helpful, I’m sure.

Considering it was,

a) hellishly busy to the point of pedestrian gridlock and

b) completely dark and

c) a freaking fairground,

I just hope the other caller got a precise GPS fix on her mobile phone signal. If not, I’m guessing they’re still wandering about now.

Remember, Remember the 5th of... what month are we in?

The Michael is taking the evening off tonight to go watch some fireworks and squeal like a scalded dog like most of the other spectators. It's been a while since I specifically went to a fireworks display - the last time being Independence Day 2005 in Philadelphia.

It's been excitment all the way in the run-up to tonight. Yesterday evening, for instance, we were able to spot a few damp squibs let off across the city that none-the-less extracted the requisite scalded animal impression. As ever, with Fireworks-UK-style, it's often the diminutive effect of the fireworks which hold the appeal. Brits have this morbid fascination of typically turning out on a cold, damp evening to gasp in pronounced, slightly despondent glee at the wet farts being let off in the sky. With frozen hands and even colder feet we push unforgivingly through the crowds, earnestly wishing we were close enough to the burning heap to warm our icebound tootsies and enjoy the flaring, searing and blistering delight as the poor ol' sod plonked on top of it is burnt to death.

Then, just when you feel your heart can be warmed no further from this joyous national celebration, the comforting harmony of a fleet of fire engines and ambulances can be heard, racing to pick up pieces and the charred remains of those who have taken celebrations a bit too far.

Can't wait. And if I feel the occasion demands it, I'll push the boat out big-time and go buy a hot-dog.

God I love Guy Fawkes. Sigh.

Why is probate so boring?

Maybe I’m missing something here but probate just bores me to tears. It’s true to say that I’ve never been particularly jazzed about the prospect of private client work and avoided those option modules at undergrad like the plague. Now on the Legal Practice Course, it’s impossible to escape the pain and suffering that is probate and instead must face it head on.

'Wills & Probate':- a drier subject I don’t think you’ll ever meet. Maybe I’m just not benevolent enough to be suited to advise the ’poor dears’ who come along to ask pertinent or at times, not-so-pertinent questions re. probate, inheritance tax or God-knows-what. Such is my hatred of this subject I’ve rather hamstrung myself in not particularly keeping abreast of matters as we’ve gone along. Thus, my reading and research for probate could be described as lacking, my knowledge limited and my competence in dealing with such issues, minimal.

Well, now I’m in the somewhat invidious position of acting as solicitor for a formative assessment and have the joyous experience of working my way around the complexities of a tricky probate matter. I’m planning on prefacing my interview with the client with the phrase, ‘in the words of the two Ronnies and the police disciplinary board, there’s good news and there’s bad. The bad news is that I haven’t a clue what I’m talking about in respect of this issue; the good – I’m not you charging for it.’

It’s cheese – It’s popcorn – it’s CHEESY POPCORN

I was introduced to this atrocity of an idea today and unsurprisingly they seem to have gone down with consumers like a lead balloon. After all, who would buy this stuff? But seriously, who in their right mind would think up a combination of popcorn and cheese. I would much sooner try a deep-fat-fried-battered-deluxe (Scottish Style) popcorn than this ‘phony-cheddar-crap’. Even a marshmallow-filled tomato coated popcorn has got to be better – okay, maybe that draws with the cheesy popcorn in the ‘nastiness stakes’. But I think my point is made.

That said, I am someone who finds the mere notion of savoury flavoured popcorn mildly repugnant, so it’s perhaps not surprising that the prospect of cheesy popcorn makes me somewhat queasy.

Don’t get me wrong, though: I’m not advocating the demise of every cheesy snack. While in Sweden, for instance, I could often be found gobbling on a pack of cheese doodles. And no, sadly, Titti Schultz wasn’t proffering a crate of them to me. Would’ve been nice, though.