We are pleased to introduce our June media disputes newsletter. In our coverage of this month’s events, we discuss the appeal of a privacy judgment against Bloomberg, Adidas’ failure to protect a trade mark, and the impact on defamation law of the UK Supreme Court decision of Lachaux.
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Bloomberg privacy case goes to the English Court of Appeal
This month the English Court of Appeal granted Bloomberg permission to appeal the High Court judgment of ZXC v Bloomberg LP  EWHC 970 (QB), which is a misuse of private information decision against the media organisation.
The dispute so far has been a cautionary tale for the media when it tries to publish reports on police suspects before charge and when it uses confidential correspondence as the factual basis for news items.
In this matter, Bloomberg had published an article based on a confidential letter of request to a foreign government from a UK law enforcement body relating to police investigations into the claimant, ‘ZXC’.
The UK law-enforcement body had made no public comment upon the ongoing investigations and no-one had been charged. Also, the confidential letter had been given to the journalist in what must have been (and should have been recognised as) a serious breach of confidence by the person who supplied it.
In the circumstances, the High Court decided that the claimant had a reasonable expectation of privacy, that there was a clear public interest that the contents of the letter should not have been published, and that the confidentiality of a UK law enforcement body’s investigations should have been maintained.
The High Court said that the claimant was entitled to an injunction, and awarded him damages of £25,000. As with most privacy disputes in the UK, if the claimant wins at the final analysis in the courts, costs recovery from Bloomberg is likely to eclipse damages many times over.
This is an important case for the media to watch because, among other points, the final decision of the judiciary will help to clarify whether in the UK generally prior to charge a person under criminal investigation should have a reasonable expectation of privacy.
Once the final decision is released in the ZXC case, the media will need to weigh up its position in light of it and the successful English High Court privacy case by Sir Cliff Richard in 2018 against the BBC and the police. The judgment in the Sir Cliff case ruled that, generally, a suspect has a reasonable expectation of privacy in relation to a police investigation. In that dispute, the BBC was ordered to pay damages of £210,000.
It is understood that the BBC offered to pay him an initial £850,000 in legal costs, but that Sir Cliff claims that the total figure for his costs should be £4.2m
Adidas: IP: Three stripes and you’re out!
In June 2019, the General Court, part of the Court of Justice of the European Union, handed down judgment in Case T‑307/17. The judgment upheld a decision by the European Union Intellectual Property Office (EUIPO) that a particular execution of the Adidas three stripes trade mark was invalid because it was not sufficiently “distinctive”.
Adidas filed an application for registration of an EU trade mark with the EUIPO on 18 December 2013, in which it said, “The mark consists of three parallel equidistant stripes of identical width, applied on the product in any direction” on clothing, footwear, and headgear. Adidas has used the three stripes logo for 70 years, and this particular mark was registered on 21 May 2014.
Nevertheless, on 16 December 2014 Belgian-based Company Shoe Branding Europe BVBA successfully filed an application for declaration of invalidity of the mark. The EUIPO granted this on the ground that the mark at issue was devoid of any distinctive character, both inherent and acquired through use.
This EUIPO decision was appealed to the EUIPO by Adidas on 18 August 2016. Adidas did not dispute the lack of inherent distinctive character of the mark at issue, but it claimed that the mark had acquired distinctive character through use.
The EUIPO dismissed this appeal on 7 March 2017. It confirmed that the mark was inherently devoid of distinctive character. It also examined the evidence provided by Adidas and found that Adidas had failed to establish that the mark had acquired distinctive character through use throughout the EU. As such, it confirmed that the mark was invalid. This EUIPO decision was the basis of the General Court judgment this month, which found against Adidas.
The Adidas three stripes design will still be protected in various other forms in the EU, but this is, no doubt, a significant blow for Adidas.
The case goes to show that simply because a design is well-known and long-established does not mean that it can always be protected in Europe as a trade mark. It will still be subject to the same rigorous tests of other trade marks, including in relation to whether it is “distinctive” enough.
Lachaux UK Supreme Court defamation judgment released
Seven months after hearing the dispute, the UK Supreme Court in June handed down its landmark defamation judgment in Lachaux v Independent Print Ltd and another.
The case is important for claimants in defamation cases because it raises the bar on what they have to prove to establish a claim. It has also been trumpeted in the media as a major boon for defendants of such actions.
The judgment interpreted section 1(1) of the Defamation Act 2013. This says: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” The judgment clarified that this statutory provision changed the previous common law one. The Lachaux judgment said that claimants must establish serious harm by reference to the actual impact of the offending words, not just their inherent meaning.
This is a subtle point, but it is important nonetheless, because it confirms that there is a clear extra factual and evidential hurdle for claimants to get over before they can establish a claim. Time, and subsequent case law, will make it clearer quite how high this will be set by the courts in the various circumstances that parties face in defamation cases.
Surge in Defamation Claims: What Is Causing the Increase?
Figures were released in June 2019 stating that the number of issued defamation claims in the London Queen’s Bench Division (‘QBD’) of the High Court soared by 70% in 2018.
Read the full article here – Surge in Defamation Claims: What Is Causing the Increase?
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