[LINK] Re: World's first, ACCC initiates Google legal proceedings

[Adam Todd]

At 09:30 AM 23/07/2007, Karl Schaffarczyk wrote:
>Hi Janet, Linkers,
>
>IANAL, but maybe the lawyers on the list might be willing to put 
>forward a hypothetical opinion.
>
>My guess is that it would depend on the extent of the complicity of 
>the publication in knowingly publishing the misleading advert, and 
>how easily identifiable the advertiser is.

Now you are talking Fraud, which is a criminal offence.  But it's 
only Fraud of a consumer actually pays money as a result of the 
misdirection and the consumer believes they are dealing with the 
origin, not the hijacker.

>My understanding is that in most cases the advertiser would be 
>pursued, *BUT* if the publication was notified by a trademark holder 
>of the infringement, and continued to print the adverts in 
>subsequent editions, then the publisher would become liable, at least in part.

Trading Post is the advertiser and the publisher :) In this case.

The publisher is generally liable for all errors and omissions 
regardless.  E&O is a major part of film and TV commercial production.

We have to make sure we don't have  CocaCola billboard in the 
background of a  shot, unless we have some arrangement with 
Coke.  It's even worse if you shoot a McDonalds in a scene and start 
sending your film out world wide, especially if you get attention.

A Publisher is required to ensure that E&O is covered, in fact there 
is even special insurance for this.

>That is, the notification to the publisher, and ignorance by that 
>publisher of that same notice would then make the publisher 
>negligent or reckless or something.

A Trademark holder doesn't have to notify a publisher for the 
publisher to breach rights.  The publisher is required to vet and 
ensure that all material is presented appropriately.  Especially if 
the publisher is a regular and long time running organisation.  In 
which case it becomes negligence, rather than ignorance.

>I am starting to get out of my depth - is there someone else who can 
>offer more?

Hope that helps.