E-Commerce: The Consumer, the Trade Mark and the Credit Card

  • John N. Adams


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.


Intellectual Property World Trade Organisation Credit Card Consumer Protection Trade Mark 
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    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.Google Scholar
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    I include in this term for present purposes p-commerce sellers using the wireless application protocol (‘WAP’) because the legal problems are identical.Google Scholar
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    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 nameGoogle Scholar
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    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.Google Scholar
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    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.Google Scholar
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    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.Google Scholar
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    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).Google Scholar
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    Which provides: ‘ 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.Google Scholar
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    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.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 2003

Authors and Affiliations

  • John N. Adams
    • 1
  1. 1.Department of LawUniversity of SheffieldSheffieldUK

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