20 March 2007

Clintons

http://www.clintons.co.uk

US Website 'Directed' at UK Users

US WEBSITE 'DIRECTED' AT UK USERS: Richard 'Diddy' Dearlove v Sean 'P Diddy£ Combs

The US pop star Sean 'Puffy' Combs (aka 'Puffy' and 'P Diddy'), who changed his name to 'Diddy' in 2005, was found to have infringed earlier rights in the name owned by Mr Dearlove, who is also known as 'Diddy'. In Richard Dearlove v Sean Combs [2007] EWHC 375 (reported 28 Feb), Summary Judgment was awarded to Mr Dearlove, in respect of certain website and lyric-related aspects of the claim, whilst other control-related aspects were reserved for judgment in a later full trial.

In late 2005, following Mr Combs having changed his professional name, the two parties entered into a settlement agreement in which Mr Combs agreed not to use the name in the UK, including by way of "advertising, offering or providing" any goods or services under the word 'Diddy'. By late 2006, despite Mr Combs having made some effort to re-brand himself in Europe as 'P Diddy', Mr Dearlove claimed breach of the settlement agreement and sought summary judgment against Mr Combs.

The first strand of the complaint concerned Mr Combs' various websites which, despite some having an icon stating that "UK Residents must click here", were found to be "directed" at UK users. The court's reasoning was based on the fact that Mr Combs' album is sold in the UK and that it will be supported by a UK tour which is advertised - or at least referred to - on the sites' home page. Some pages using the name "Diddy" were seen by UK users before being told to navigate to a UK-only page. The "presentation" of the site was found to "suggest that the general site is intended" for all users, regardless of location.

The second strand of the complaint concerned the lyrics of Mr Combs' album Press Play in which Mr Combs refers to himself as "Diddy" and which Mr Dearlove claimed amounted to an advertisement of goods and services in the UK under the disputed name. Citing lyrics such as "Mainline this new Diddy Heroin", "download me in every resident", "my CD's in 3D holograms" and "the live show's a hard act to follow", the Court found the lyrics to be a "straightforward advertisement by Mr Combs of his CD, his songs which can be downloaded from iTunes and his live shows, all under and by reference to the word 'Diddy'". However, despite finding the lyrics an advertisement in the UK of goods and services using the disputed name, the Court was unable to determine whether or not Mr Combs had sufficient editorial control over the album and this issue was reserved for later argument in a full trial.

This case highlights the key question of whether use of material on the Internet from a location outside the UK can constitute use of that material in the UK and the court confirmed the test of "whether or not the average consumer of the goods and services in issue within the UK would regard the site as being aimed and directed at him" and in applying this test that a court would consider "the nature of the goods or services, the appearance of the website, whether it is possible to buy goods or services from the website, whether or not the [site] has in fact sold goods or services in the UK through the website or otherwise, and any other evidence of the [owner's] intention". As specific examples, an Irish furniture shop that advertises a "four-floor" shop would not be regarded as being "directed" at users outside Ireland, whilst a US pop star's website advertising an album sold in the UK and an upcoming concert in the UK, apparently would be "directed" at a UK user.

The question of where a website is located - and to which law it is subject - is not yet entirely clear, but at least we now have a good deal of useful guidance.

Clintons Media News bulletin service is intended to alert clients and friends of notable media and entertainment law and business developments. It contains general information about English (or other) law. It does not contain legal advice. For further information on any specific legal matter, please consult a solicitor at Clintons using the contact details in the right hand column.

Jobs Now IN-HOUSE SOLICITOR OCS, a privately owned company, seeks to recruit a Corporate/Commercial Lawyer to join their Head Office based in Surrey More >> SOLE LEGAL COUNSEL Sought by JW Legal for their client, a dynamic organisation, to work closely with their CEO in London More >> BIDS EXECUTIVE Required by Matrix Legal for their client, a leading law firm, for a new position in their Bristol office More >> COSTS DRAFTPERSON With a minimum of 3 years experience sought by Ralli Solicitors to join their offices in the North West More >> LEGAL SECRETARY Sought by Freshfields Bruckhaus Deringer to support a number of Fee Earners in Abu Dhabi More >>

Legalday Related Pages

Contact

Clintons
55 Drury Lane
London
WC2B 5RZ
Tel 44 207 379 6080
Fax 44 207 240 9310

http://www.clintons.co.uk

More Commentaries From
Clintons

Court Orders ISP to Filter Content - SABAM v SA Scarlet
13 July 2007

Copyright in Video Games
21 March 2007

Ongoing Management Commission gets Seal of Approval
02 March 2007

More Commentaries from
Clintons

Author/Firm Profile
Clintons