19 November 2016

Don’t mislead the competition

poshtenska-kutia-za-mrysni-prikazkiStore.bg is one of Bulgaria’s leading online retailers for books, music, video content and toys.

After the publication the book on the left, Store.bg started distributing it on their website, claiming that would be the only venue where buyers could find it. Not to the pleasure and amusement of their competitors from Ozone.bg, who also distributed above book, but without claiming any exclusivity whatsoever.

So, Ozone.bg petitioned Bulgaria’s Competition Protection Commission (CPC) and claimed that the respondent Store.bg’s trade practice were (1) false statements and (2) represented misleading advertisement, both of which created a confusion on the relevant part of the public. Therefore, claimed petitioner, respondent were liable on the grounds of article 31 and 32 of the Competition Protection Act.

The CPC delivered a ruling (.pdf in Bulgarian) where it disagreed with the claim re false statements as those could have only been relevant had the respondent claimed certain or specific properties to the book in question. As this was not the case, the Commission dismissed that claim.

The CPC, however, agreed with the accusation re misleading advertisement, holding that it was a misrepresentation of facts that was directed at the consumers and was also capable of influencing them to choose respondent’s offering over that of the other competitors in the marketplace.

Therefore, the CPC fined Store.bg with 38 350 BGN, representing 1% of respondent’s overall turnover for the preceding year 2015.

The ruling may be appealed before Bulgaria’s Supreme Administrative Court.

23 May 2012

Bulgaria´s Competition Watchdog Says Misappropriation of Images is Passing Off

This is the title of a blog post I wrote for The Reguligence Website, which is my newly launched professional website.

I suggest you take a look at it, should you care to know about the role of Bulgaria’s Commission on Protection of Competition and why it is important also in terms of intellectual property protection.

13 January 2011

Customer Repulsion Management

M-TELphoto © 2006 B K | more info (via: Wylio)

What is a customer relationship management (CRM)? Wikipedia calls it a “widely implemented strategy to, by means of technology, organize, automate, and synchronize business processes to find, attract, and win new clients as well as to nurture and retain those the company already has.”

How do I come across CRM since it is not really within the scope of the Reguligence Weblog? Well, the last couple of weeks I have read a lot and, when I write “a lot” I mean a lot about the troubles that the customers (subscribers and prepaid users) of the largest Bulgarian mobile network M-Tel have been experiencing since September 2010.

Unfortunately and unlike my usual way of blogging, I can provide the audience with just very few other than Bulgarian-written evidences. I was somewhat upset when I examined the Bulgarian news portals issuing news in English and had to realise that, for whatever reason, they had omitted to cover this story.

Reportedly, the troubles have commenced with M-Tel’s deployment of a new CRM solution provided by Amdocs and resulted, inter alia, in inflated bills and customers’ inability to control their credit balances.

That all happens, one could assert. This is true and, as part of their risk management strategies, operators should have crisis management plans in order to control such events. In this connection customer relationship management in the sense of customer satisfaction is just vital. One could not stress that often again.

Obviously, this is the field where M-Tel just fizzled out. That not enough, they demonstrate an absolute unpreparedness to in general terms maintain  CRM towards their customers. For instance, customers unhappy about M-Tel’s failure to provide certain services cannot just terminate their contracts asserting material breach. Instead, customers must go through a real cascade of sections contained in both, M-Tels general terms and conditions (GTC) and customers’ individual contracts. By means of an example, section 52 of M-Tel’s GTC provides for customers’ right to terminate upon 7 days written notice. However, that warranty is always prejudiced by conditions stated in individual contracts. Unfortunately, such contracts are not retrievable on the Internet. Why, one might ask? M-Tel claims confidentiality and the Bulgarian competition protection authority acknowledges it. But maybe the real reasoning lies in that those individual contracts provide for an automatic renewal upon their expiry, unless customers terminate with 30 days written notice before said expiry. Such notice, if submitted earlier or later than 30 days in advance, would not match the requirement and the contract would renew for an additional year.

Unbelievable, huh?

The only downer on the horizon is the fact that upon numerous complaints and, as late as today, the Bulgarian consumer protection authority started formal proceedings against M-Tel’s business practices. I hope that the authority in question, although equipped with just an edgeless sword by the Bulgarian legislator, thumbs down M-Tels performance and obtains an improvement for their plagued customers.

Otherwise M-Tels CRM will be referred to as “Customer Repulsion Management”.

 

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20 March 2010

How to hit a misappropriating fly on the wall

My fly on the wallphoto © 2009 Clare Bell | more info (via: Wylio)

Imagine you were a farmer and invested lots of time and effort to sow seeds and watched the crops grow. Now imagine another farmer who attempted to harvest your crops without having invested any time and labour therein. Would you allow such farmer to reap your crops? You most probably would not.

In a very recent case , the New York District Court for the Southern District had to deal with a question pretty much like the one above. The claimants Barclays Capital Inc, Merril Lynch, Pierce, Fenner & Smith Inc and Morgan Stanley & Co Inc accused the defendant theflyonthewall.com of copyright infringement and of hot-news misappropriation relating to claimants’ recommendations that claimants have researched for their paying clients.

In particular, the claimants accused the defendant to have undertaken a regular, systematic, and timely taking of claimants’ hot-news and to have disseminated them through unauthorised channels of electronic distribution before the claimants had an opportunity to share these recommendations with their clients.

As for the claim regarding copyright infringement,  defendant did not dispute ther arrangement therein. As for the claim relating to hot-news misappropriation, however, defendant contested its liability thereunder.

Not surprisingly, the Court found defendant liable in both instances.

This ruling, albeit delivered by a lower court, is, I believe, remarkable for Court’s dissection of the law of unfair competition and, misappropriation, in particular. The Court started with INS vs AP, went through Cheney Bros vs Doris Silk and Capitol Records vs Mercury Records and ended up with NBA vs Motorola. A very important thing in my view, is Court’s dedication to the question as to whether federal law preempted  forms of state-law misappropriation, and particularly,  misappropriation of time-sensitive “hot news”. The Court further cited a “mysterious footnote” from Feist, according to which the protection for “hot news” should not be sought under copyright law, but under an INS-type misappropriation theory.

Finally Justice Denise Cote spent some considerations on the public policy. Besides the value of claimants’ hot-news to the market, she thereby noted that such recommendations were not mere objective facts, but rather, subjective judgments based on complex and imperfect evidence and could therefore attract copyright protection. With respect to public’s interest to access financial information on reasonable terms, the Court stated that a balance need be struck between establishing rewards to stimulate socially useful efforts on the one hand, and permitting maximum access to the fruits of those efforts on the other. However, no other was the purpose of the INS-tort or the one of the traditionally accepted goal of intellectual property law – and this is – to provide an incentive for the production of socially useful information without either under- or overprotecting the efforts to gather such information.

Put it all together, the 89 pages long ruling of the New York District Court for the Southern District definitely hits the misappropriating fly on the wall. Bearing its unique dissection of the US law of unfair competition, this ruling and any acompanying comments should be communicated to as many practitioners or just people interested in the matter as only possible.

 

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23 November 2009

Keyword advertising actionable under privacy law?

Debates on the use of keywords that equate registered trade marks have brought  new challenges for legal professionals. As well-known, the majority of lawsuits on keywords advertising were based on alleged trade marks infringement.

However, the courts’ ambivalent treatment of such trade marks proprietors’ claims (see Google AdWords Litigation update for the US and Advocate General  Poiares Maduro’s opinion on Google’s AdWords to the ECJ for Europe) might have brought a Wisconsin law firm to observe this set of problems through a different angle.

Representatives of Habush, Habush & Rottier have discovered that when their law firm’s name is sought over internet searching engines, the name of Cannon & Dunphy, a rival law firm, showed up. Accordingly, Habush have filed an action against the rival who does not even deny the purchase of a keyword containing claimant’s name. However, whether based on reasons stated above or not, Habush is not willing to rely on trade marks law, but on Wisconsin’s law on privacy.

In my view a really promising case. We will see as to whether it will bring some freshness into the keyword advertising complexity.