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Dateline: 14 May 1999 All-day Edition Read Yesterday's Edition Under Investigation
Continued...
In respect to Telecom's claim of trademark over the colour yellow on the Web --
the veracity of this claim is yet to be tested and other parties, such as
Trade & Exchange,
are actively engaged in legal action to challenge Telecom's assertion.
An Extremely Interesting Situation
If the Yellow Web site has been sold to an overseas operator, could
Telecom enforce its alleged trademarks on that operator?
I wonder why the owners of the
New Zealand Yellow Pages
or
New Zealand Yellow
websites don't seem to have incurred the wrath of Telecom? Too expensive?
Too hard?
If Telecom are prepared to leave these sites unmolested by its land-sharks then
surely they're going to have trouble protecting their alleged Net trademarks
against exploitation by other overseas-based but NZ-targeted operators.
To retain trademark protection, the owner has to assert the rights that those
trademarks offer in a regular and consistent manner me thinks. Allowing
these other sites to use the alleged trademarks unchallenged must surely weaken
their claims for trademark protection and their case against Henk.
Will they perhaps only enforce their claims on those overseas sites which
attempt to sell services to NZ-based customers?
Will they simply pick on only those who are not in a position to properly
defend themselves?
The borderless operation of the Net threatens to open a whole new can
of worms
As an aside, I wonder why NZ.com changed the
URL http://nz.com/webnz/GoldPages/
to point to their Platinum Pages? Was "gold" a little too close to the colour
yellow for somebody?
Fault On Both Sides
Firstly, he could have perhaps avoided crossing sabres with Telecom by placing
a simple advisory message on all his web pages. Something like:
would have effectively removed any doubt in the mind of a visitor who might have been confused by the alleged similarity to Telecom's offering and scuttled Telecom's claims of "passing off." Henk should have also invested a few dollars in trying to register the trademarks "yellow web pages" or "yellow web." This would have given him a measure of protection against Telecom's claims -- or at least alerted him to the fact that Telecom would not let such a claim go unchallenged. It's also worth remembering that the key to success on the Net is not in trying to duplicate that which is already out there -- but through the development of new and better ideas, concepts and implementations. The very fact that there are so many "yellow pages" websites on the Net makes it almost impossible for "a little guy" to gain any significant share of this market anyway. Simpson's first rule of Net-success: "Don't compete -- create new markets and own them."
The Bottom Line In the meantime, anyone contemplating the development of a site using either of these alleged trademarks would be advised to:
What do you think? I find it more than a little unjust that an offshore company can use the alleged Telecom trademarks on the Web with impunity while an NZ business or individual will come under an expensive legal attack for doing the same thing. Henk has made a lot of fundamental mistakes in the way he's gone about things, which is a shame because if Telecom are able to establish a precedent through obtaining a successful prosecution in Henk's case it could make it far more difficult for other NZ entities to challenge Telecom's claimed monopoly on the colour yellow and the phrase "yellow web pages." Doubtless this story will soon get picked up by the mainstream media so if readers would like to voice their comments in the Aardvark Forums I'll try to direct other news sources to them. Hopefully this will ensure they can accurately report the opinions of Net users and the industry (or am I doing ISOCNZ's job for them here? :-) What do you think? Why not have your say!
Note: I'm not a lawyer - I don't even pretend to know any lawyers.
Despite what you may think I am not tendering any legal advice or opinion here.
Lawyers are encouraged to have their say on this issue, however -- just don't
send me the bill!
Others are advised to consult their own lawyers when seeking advice and not
to act on any opinion or information contained in this column.
Hey, that sounded pretty good -- maybe I should have been a lawyer after all?
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16 Apr 99
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Aardvark Daily is a publication of, and is copyright to, Bruce Simpson, all rights reserved
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