White SW Computer Law
|Intellectual Property, Information Technology & Telecommunications Lawyers|
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If your personal or professional relationship has ended, one of the last things you will probably be thinking about is your website, but as the Federal Court recently decided, this is an issue that should not be forgotten.
In the matter of Kailash Centre for Professional Development Inc v Yoga Magik Pty Limited the business and personal relationship between two parties who had established an internet based business had broken down. One of the two, Jonn Mumford, is a longstanding teacher in yoga and Hindu spiritual tradition and the other is his former partner.
After their relationship broke down, Mumford sought to prevent his former partner's continued use of his name in association with the business, claiming, amongst other things that it amounted to misleading and deceptive conduct.
The Court had to examine whether there was any conduct in trade or commerce that had misled or deceived a relevant section of the public by causing them to think that Mumford was commercially associated with, or had given approval for Yoga Magik Pty Ltd (a company controlled by his former partner) to associate his name with the business.
Mumford sought to have a disclaimer placed on the Yoga Magik website stating that he was not associated with the business, that he had no control over the information contained on the website, that Ms Stevens (Mumford's former partner) is not a lineage holder from Mumford and is not authorised or empowered by him to teach the subject matters covered by Yoga Magik's courses and giving contact details for Mumford.
Amongst other things, Mumford also requested that registration of the domain name and sub-domain name containing the words “johnmumford” and “mumford” be deregistered and not re-registered.
The Yoga Magik website contained extensive references to and material about Mumford and the Court found that a reader would have been likely to think that Mumford was personally or commercially involved with the business. Word including Mumford, Dr Jonn Mumford and jonnmumford were also used in the website's meta tags. The Court held that the use of meta tags such as these would create a degree of association between the website and Mumford as a person searching the internet using Mumford as a search term, would find the Yoga Magik website.
The Court ordered that a disclaimer be placed on each page of the Yoga Magik website for two years, in a typeface of the same size as other standard text on the page, which stated that Mumford was no longer associated with the Yoga Magik business or website, that Mumford has no control over the website or the information contained in the website, that Ms Stevens though initiated as a disciple by Mumford is not authorised or empowered by Mumford to teach any courses and where Mumford's web site could be found .
It was also ordered that the respondents, Ms Stevens and her two companies, be restrained from representing that Stevens had been given authority or permission or has been empowered by Mumford to teach any course of yoga or Eastern spirituality referred to on the Yoga Magik website in 2002 and that they deregister or cancel the domain names
www.jonnmumford.com and the sub-domain name
www.members.ozemail.com.au/~mumford8 and be restrained from reregistering these domain names or any other domain name which includes any of Mumford's names or aliases.
It was also ordered that a proportion of the course fees charged by the respondents while they were engaged in their misleading and deceptive conduct be paid to the business, which had been marketing Mumford's courses at that time and that Stevens and Yoga Magik Pty Ltd pay the applicants' costs.
A website is a powerful marketing tool and often use the reputation of a particular person or a brand to promote goods or services. If you propose to do so, careful consideration must be paid at all times to who will own the rights associated with the person's reputation or brand now and in the future.
WHITE SW COMPUTER LAW
© White SW Computer Law 2004
This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquiries and seek appropriate legal advice.