Only recently I wrote an article on online reputation monitoring for the Society of Computers and Law magazine.  (The article is accessible to members, and at £50 per annum, membership is excellent value).
In the article I discussed how web 2.0 technologies like blogs and forums which allow ordinary people with no HTML skills to post content online are the beginning of a massive sea change in society. Ironically, in that article I also mentioned how a heavy handed legal approach could sometimes backfire dramatically and have the very opposite effect to that intended. I gave the example of Usmanov and Craig Murray. (I am not aware of the ins and outs of the case, so mentioning it is not intended as a criticism of Schilling’s approach so much as an illustration of how the internet is turning the old rules on their head).

So we are rapidly seeing the need to adopt a different style in this new connected web environment. I suggest that strong threatening defamation letters should be reserved for really serious and clear cut defamation cases. A more softly softly approach is sensible initially in all other cases.

For example, CTMFS’ director Mr Evans, went over the top in sending me such a strong letter threatening legal proceedings, and demanding an apology, damages, correction etc. That is why I published it on this blog. It is a good example of what not to do. It also illustrates the dangers of non lawyers using standard legal precedents in non standard situations. Rather than asking a lawyer to send me a letter, he chose to fire off his standard template to me. I am sure if he had sought legal advice first, the letter I would have received would have been more proportionate, and therefore might have achieved a better outcome.

Blogging on the hazards of blogging – using a Californian server 

Californian surfer (Image: FreeDigitalPhotos.net)

Which leads me to the main purpose of this article, and that is to say that following this CTMFS experience which has been unpleasant, and negative, I have decided I need a US based location for any blogging that becomes controversial. On an everyday level I will be using it to write about the hazards of blogging.

The legal rules that UK web hosts are subject to, means that if you write anything controversial which others want to force you to take down, then your web host risks liability for the content if it continues to host the objectionable material. However, US hosts are subject to more favourable laws. For example, Blogger.com is hosted by Google in the USA, so you would not have to worry about having your voice cut off by your host if you said something someone wanted to have removed. I will be writing more about the liability of hosts in future blog posts.

For now I just want to say that I am now also blogging via http://www.shireensmith.com. This is being hosted in California, and now contains all the blog posts that Mr Evans might want removed from our IP Brands blog. The reason for choosing California is that it is that I like the sound of its favourable environment for bloggers, with its anti-SLAPP laws - a topic I will be looking into more closely in future blog posts. This is not directly relevant to me personally of course as I am a UK based individual and therefore subject to UK defamation laws, but its significance sounds like an interesting topic to explore in future blogs.

Quack? (Image: FreeDigitalPhotos.net)

I think it’s worth looking at what has happened here given the allegations of defamation.

It all started when I posted a tweet on Twitter mentioning that 3 clients had received CTMFS’ ‘invoices’. Ending with the word ‘scams’.

If Mr Evans’ intention was to stop the use of the word ‘scam’ in relation to the ‘pro forma invoices’ his company routinely sends out to UK trade mark applicants , then he would have had a more positive outcome had he sent an explanatory letter about his business model. No threats, just clarification.

Although, such an approach would not have changed my opinion about his business model, it would have alerted me of his sensitivity about the use of the word ‘scam’ to describe his business model. I would have then avoided upsetting him by using other words. After all, what is the word but a slang term to describe an activity which is misleading (Chambers defines it as a trick). He equates the word with ‘fraudulent and dishonest’. Well, to me these are semantics.

But I do wonder if I had tweeted as follows: Warning: 3 clients contacted us today about ‘invoices’ from CTMFS of Liverpool. Beware! whether he would have left me alone. Or would he rather have descended on me like a ton of bricks for that too? I suspect he would have done so but we will never know for sure. The fact that he has been so heavy handed over such a trifle is because he wants the world to believe that he is no different to any other provider of trade mark services, despite his dubious business model.

Is CTMFS any different?

We take a lot of trouble to educate our clients about ‘scams’ of various sorts involving the issuing of ‘invoices’ to those whose names are on the IPO’s or other official registers. We advise them to be alert and not make payment on such ‘invoices’ and to contact us if in doubt. The IPO also does its bit to educate the public, by routinely sending warning letters here . CTMFS falls within the second category of business the IPO describes as potentially to be alert to.

By opting for a business model which we and the IPO have to warn consumers against, CTMFS positions itself in the firing line. The obvious way for Mr Evans to distance himself from others who he presumably regards as real scammers (presumably, I imagine these would be people who take the money and run, and provide nothing at all in return, and who possibly cannot even be traced), would be to improve his marketing practices. Because really it is all a question of degree.

If he wants to be regarded in the same light as any other provider of trade mark services then why the misleading style of approach? Why use a name suggestive of a connection with an official body? Why send a ‘pro forma’ invoice which does not make it clear that in addition, there are official fees to pay on top of the ‘invoiced’ amount, (and spell out these will be 1050 Euros).

I had hoped the his change to his practice (see here) whereby he would be sending a covering letter along with his pro forma invoice, was suggested a step in the right direction. But, perhaps he would not now be pursuing me if he was intending to change his business model.

And if he won’t change the model, it is probably because too many people are mistakenly paying on the pro forma invoices, in the mistaken belief that it is an official sum that they are required to pay. Does he really expect us to believe that people receive his ‘invoices’ and think, “what a good idea, I can now get an EU trade mark, so let me immediately settle this invoice”.

Would the majority of consumers knowingly pay the £500+ fee? I don’t think many people would without at least first shopping around to find out how much others might charge and what they would offer? Would they think this was a fair sum to pay just to have an OHIM form completed using the identical information available on the UK IPO site which they themselves would have to forward to OHIM with payment of the official fees? And would they think paying 1050 Euros is fair enough, given that plenty of other providers would be able to file online for them for 150 Euros less, and in general far lower legal fees to do the work?  I doubt that consumers are in fact making a real choice to purchase CTMFS’ services, because it is a rip off price for what it offers – particularly given that no-one is overseeing their application through the examination and advertisement stage through to registration.

So, no I do not think I have defamed Mr Evans or his business, CTMFS. As they say if it walks like a duck and swims like a duck and quacks like a duck, then it probably is a duck. Even if our duck has a small sign saying “You can’t shoot me, because I am not really a duck – see small print for details”.

So, I am writing this in full expectation that anything could happen, including full scale legal proceedings for refusing to take down the blog posts about his CTMFS invoices. The case against me is extremely weak which is why I will not cave in to his threats. His style is to issue threats to silence anyone who dares to utter criticism against him.

Generally his threat approach has tended to work with blog owners, and small businesses. They lack the time and resources to look into whether they would be able to fend off defamation proceedings. And although I too have better things to do with my time than get embroiled in defamation proceedings, I don’t see that I have any other choice but to stand up to him.  At least one side benefit I will gain from taking him on, and standing up for my principles is that I can relearn defamation law.

I used to be a defamation and media lawyer many years ago when I worked at Reuters as an in house lawyer. In those days, the legal department ran a rota system for advising on libel matters. If editorial needed to discuss with legal (whether during the day or in the middle of the night), a defamation issue they could ring whichever lawyer happened to be at the top of the list that week. I had sufficient expertise to perform such a role. However, now I have let that knowledge slip, focusing on IP and internet law instead. But technological developments and the nature of the issues that arise on the web make it imperative for all IP and internet lawyers to also cover media and defamation law. This is becoming widely recognised. So, given the need to come up to speed again on the subject, I can justify engaging in legal proceedings with Mr Evans as an educational opportunity.