Abstract
In this paper it is argued that the problems of consumer protection in international e-commerce consumer transactions are insoluble either by national legislation, or even by EU legislation. I think, however, that the market will solve many of the problems. This will be facilitated by the effective protection being given to ‘well-known’ trade marks, and effective action being taken against those registering, without justification, confusingly similar domain names. Since the credit card is the almost invariable mode of payment for goods purchased on the Internet, the most effective legislation that governments could put in place would be an equivalent of section 75 of the United Kingdom Consumer Credit Act of 1974 which will give consumers effective remedies against the card companies, even for quite small claims.
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References
See Atiyah, Sale of Goods, 10th ed. Adams. Longman, 2001, p. 66 et seq.
World Trade Organisation 1998.
Ibid. p. 5.
This at any rate is the way in which properly set up commercial websites operate. It is possible to set up the site so that the goods are offered through the seller’s website so that each buyer accepting this offer would become entitled to be supplied with the goods, but there would be obvious problems with this in practice for sellers, so that this would not be a normal way of conducting business. Even Internet auction sites require the ‘auctioneer’ to indicate by the equivalent of the fall of a virtual hammer that the buyer’s bid is being accepted.
I include in this term for present purposes p-commerce sellers using the wireless application protocol (‘WAP’) because the legal problems are identical.
The nature of this protection is explained below. 740/94/EC.
See Posner, Economic Analysis of Law. Little Brown & Co, 4th ed., pp. 43–45.
The definitive work on this subject is Mostert, Frederick W., Famous and Well-known Marks. Butterworths, 1997.
Paris Convention for the Protection of Industrial Property of March 20, 1883 as revised at Brussels on December 14, 1900; at Washington on June 2, 1911; at the Hague on November 6, 1925; at London on June 2, 1934; at Lisbon on October 31, 1958; at Stockholm on July 14, 1967; and as amended on October 2, 1979.
See David Tatham, OBE, WIPO Resolution on Well-Known Marks — a Small Step or a Giant Leap. Intellectual Property Quarterly 2000; 2:. 127. ‘WIPO is the World Intellectual Property Organisation. WIPO administers 23 treaties (two of those jointly with other international organizations) and carries out a program of work, through its member States and secretariat, that seeks to: harmonize national intellectual property legislation and procedures; harmonize national intellectual property legislation and procedures; provide services for international applications for industrial property rights; exchange intellectual property information; provide legal and technical assistance to developing and other countries; facilitate the resolution of private intellectual property disputes; and marshal information technology as a tool for storing, accessing, and using valuable intellectual property information — information supplied by WIPO website visited 29 December 2001.
See Tatham, loc. cit.
Reg. 40/94/EC.
84/104/EEC.
See General Motors Corporation v Yplon SA ‘Chewy’ TM Case C-375/97, [1999] European Trade Mark Reporter 122, in which the mark at issue was ‘Chevy’ which is a common abbreviation for ‘Chevrolet’ for automobiles in the USA and many other countries, whilst ‘Chevy’ was registered and used mainly in the Benelux countries as a brand name for washing powder etc. ‘Chevy’ thus had a reputation in a limited part of the world for washing powder etc., whilst Chevrolet is well-known for automobiles in most parts of the world, and the word ‘Chevy’ commonly used to refer to such automobiles. Examples of well-known trade marks protected under 6bis of the Paris Convention are ‘Kodak’, ‘Coca-Cola’, Tepsi-Cola’ (though in relation to the latter two marks the ‘cola’ part is purely descriptive and can be used by other traders as it was by ‘Virgin’). ‘Virgin’ is itself a well-known mark, of course. There are other well-known marks largely known only to specialists. Examples are the marks used for their products by the pharmaceutical companies and producers of products used in diagnostics, which are largely known only to physicians.
A useful history of this will be found in Tatham, loc. cit.
Art. 4.
Decisions of the three dispute-resolution service providers can be viewed on their websites. The three are the World Intellectual Property Organisation, Arbitration Forum, and Resolution. The latter itself had its name grabbed — see 3636275 Canada, t/a eResolution v eResolution in which eResolution secured the transfer to it of the domain name
And see Pitman Training Ltd v. Nominet UK, [1997] FSR 797.
Id. paras. 7 and 8.
97/7/EECOJ1997L144.
Id. Art. 2.
Art. 2(4) and Annex 1 provide the Directive covers telephone means of communication with or without human intervention and e-mail.
Art. 3.
Id. Art. 5.
Art. 6(1).
Art. 6 (2).
Art. 6(1).
Ibid.
Ibid.
Art. 6 (2).
Art. 6 (3).
Art. 6 (4).
I.e. the supply of goods or services to a consumer without their being ordered by the consumer beforehand, where such supply involves a demand for payment Directive 97/7/EC Article 9 (see also ibid. Recital 16).
85/374/EEC.
In the case of the UK the leading case is The Hollandia, [1983] 1 AC 565 — not possible to avoid the application of the Hague/Visby Rules by choosing Dutch law.
See e.g. Marks & Spencer pic v. One-in-a Million Ltd, [1998] FSR 265.
This provision is reinforced by s. 56 (2) which provides: ‘Negotiations with the debtor [antecedent negotiations] shall be deemed to be conducted by the negotiator in the capacity of agent of the creditor as well as in his actual capacity’. See Jarrett v Barclays Bank, [1997] 2 All ER 484.
Difficult, because the rules on the formation of contracts differ from jurisdiction to jurisdiction, and in some jurisdictions the lex loci contractus is considered relevant in determining the law applicable to the contract.
Above.
It should be noted that a licence is required to carry on a consumer credit business in the UK — Consumer Credit Act 1974 s. 21. An exception to this is ‘European Institutions’ authorised to carry on listed activities’ in another Member State of the EU can carry on those activities in the UK without a licence — Directive 89/646/EEC implemented by SI 1992/3218.
It is not clear from Jarrett v Barclays Bank (above) exactly why the claim against the Portuguese seller was a ‘like claim’. The Court of Appeal construed these words as meaning essentially similar cause of action (ibid p. 495), but the relevant provisions of Portuguese law were not considered. A possible explanation is that since these were consumer claims, the Court treated the application of the relevant provisions of English law as mandatory (see The Hollandia above).
Which provides: ‘...in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property’ the courts of the state in which the property is situated have exclusive jurisdiction. This restrictive interpretation is consistent with the view expressed in the Jenard Report, which is the main source of guidance other than court decisions on the interpretation of the Brussels and Lugano Conventions.
See e.g. Smith v. Navistar International Transport Corp 714 F Supp 303 (N.D. 111.) (1989); Christinson v. Venturi Const. Co. 109 Ill.App.3d 34, 64 Ill.Dec. 674, 440 N.E.2d 226 (5th Dist.1982).
The current limits are goods costing more than £100 and less than £30,000 including VAT — ibid. s. 75. It may be noted that the US Federal Trade Commission Rule of 1975 reflects similar thinking.
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Adams, J.N. (2003). E-Commerce: The Consumer, the Trade Mark and the Credit Card. In: Granstrand, O. (eds) Economics, Law and Intellectual Property. Springer, Boston, MA. https://doi.org/10.1007/978-1-4757-3750-9_3
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DOI: https://doi.org/10.1007/978-1-4757-3750-9_3
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