The Travlaw Blog

The Advocate General has today delivered an opinion in which he considers that Google has not infringed trade mark rights by allowing advertisers to buy keywords corresponding to registered trademarks. In it he said:-Because when selecting keywords, there is no product or service sold to the general public, the mere selection cannot be considered as being a use made in relation to goods or services identical or similar to those covered by the trade marks (as is required by the trademark legislation). Similarly, advertisers themselves do not commit a trade mark infringement by selecting in Adwords, keywords corresponding to trade marks.The legislation requires that there be a risk of confusion on the part of consumers as to the origin of goods or services and the mere display of relevant sites in response to keywords is not enough to establish such a risk.

He went on to say that trade mark rights cannot be construed as ‘classical property rights’ enabling the trade mark owner to exclude any other use even if it involves a trade mark which has a reputation.  

The Advocate General’s Opinion is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the European Court of Justice are now beginning their deliberations in applicable cases which will usually be binding on the English Courts.We have no doubt that the effects of this opinion on the travel industry will be significant and negative particularly in the light of yesterday’s publication in The Great Online Holiday Hijack 2009 - The Gloves Come Off, of the Nucleus survey of travel companies, where 80% of the brands surveyed said they were victims of brand hijacking where one online advertiser pays to intercept search enquiries for a competitor brand, often using their brand name as a keyword.  

For more information or advice, email me or charlotte@travlaw.co.uk.  

Further to the information we gave you last week about ABTA’s proposed extensions to Members’ responsibilities for consumer’s money paid for travel arrangements, ABTA have clarified their intentions a little. They have said:-‘The proposal is that any ABTA Member supplier, whether acting as principal or agent, who sells to a customer through a travel agent should be responsible for that customer’s money in the event that the travel agent fails before payment has been passed on to the supplier.’ They go on to say;‘The proposal addresses a new phenomenon seen in the market where travel agents have failed holding significant amounts of customer money, and the supplier whose product they were selling consequently refuses to fulfill the customer’s booking.’We are grateful for this clarification but are still unsure about the exact meaning of the phrase ‘accept responsibility for such monies’ in the first of ABTA’s proposals: is it intended to mean that Members’ bonding requirements will be extended; or that a non-packaging Member acting as a retail booking agent could be liable for the acts and omissions of the supplier of the arrangements? If the proposal is intended only to deal with pipeline money, we agree with ABTA when they go on to say that the proposal broadly mirrors the existing law and so will also apply to non-members; but we do think that the proposed ABTA change may have a slightly further reach than the common law would in respect of an agent selling through another agent.  We would welcome further clarification from ABTA and also your own thoughts and feedback.  Drop me an email!Sarah

As many of you will already know, ABTA have this morning announced that they are holding a General Meeting on 2nd October for members to vote on proposals to change ABTA’s Articles of the Association which will strengthen customer protection for those booking with an ABTA Member. The main changes Members will be asked to vote on are:- i)                     to ensure all ABTA Members take responsibility for money paid by their customers to companies through whom they distribute their travel services. ii)                   to change the qualifications for membership so that applicants for membership or continued membership would be subject to greater scrutiny in respect of previous directorships of failed companies, and to provide a greater restriction on the use of trading names that have been associated with failed companies.It will be interesting to see just how these changes (if they get through) will affect and be interpreted by members and the industry as a whole; and how booking conditions and other documentation may need to be amended as a result. We will of course keep you informed as things unfold.  ABTA’s press release about this is at www.abta.com/about/news/view/180 Call or email Sarah Lacy- Sarah@travlaw.co.uk for further information.

Hi Folks!!

A quick note to all our loyal blog readers, clients, and the like! Check out our new and exclusive Travlaw Travel Industry Poll, new for Autumn 2009.

http://www.travlaw.co.uk/poll.html

A new interactive feature of our website, the poll will appear monthly, featuring a question targeted specifically for the Travel Industry.

This poll assists us with providing tailored articles, features, and advice designed specifically for addressing important issues within the Travel Industry.

Latest government statistics state:-

a.      Up to 12% of the UK Workforce could be absent this September as a result of contracting the Swine Flu Virus.

b.      The potential impact of the economy could be a massive £50 Billion.

Whilst these statistics are rather frightening…..and we can understand how many businesses are getting nervous about these statistics…..many critics are casting doubt on the strength of these economic forecasts and suggest much ‘scaremongering’ in the media.

Here at Travlaw LLP we agree with the latter, and would certainly not advocate ‘panicking’ about these reports. However we do advocate that it is important to take a ‘sensible and pro active’ approach, to manage the many inevitable Swine Flu sicknesses over the coming months in order to minimise the effect it will have on your business.

2.     BUSINESS MANAGEMENT TIPS

Managing Sickness 

2. 1. Covering work of absent employees. Can this be redistributed? If not, consider agency workers.
   2. Employees working from home? Could this minimise the risk of spreading infection?
   3. Flexible working requests. Remember you must give reasonable consideration.
   4. Employee reporting policies. Are all employees aware of their sickness notification obligations requirements? Send a reminder.
   5. What is the Company’s policy in terms of time of to look after dependents? Again revise/ circulate this policy to employees.

Your Statutory Health and Safety Obligations

2. 6. Communicating with your employees….how can you minimise the spread of infection?
   7. Undertake a health and safety risk assessment, to highlight specific concerns which could be addressed.
   8. Increased hand washing facilities, and hand sanitising gels available at all work stations.
   9. More frequent cleaning of the office could help minimise the spread of swine flu.
   10. Reminders of the importance of good personal hygiene and appropriate disposal of tissue.

We would recommend taking these considerations to mind as soon as possible to ensure you can manage any potential situations which may occur over the coming months. Preventative measures and being proactive are certainly the key to ensuring ‘swine flu’ will not have a great effect on your business.   If you require any further information, tips or guidance please call or email Charlotte@travlaw.co.uk.  

regulation-ec-no-1107.docPlease find attached Travlaw LLP’s interpretation of the PRM’s This article details the implications of the PRM’s and how they apply.

For more information email Charlotte@travlaw.co.uk

We would like to say a big thank you to all who attended the annual ABTOF Conference Reims, France. We were delighted to meet all the new faces, and it was lovely to catch up with all of the familiar conference goers! We especially hope that you enjoyed the specialist legal seminar conducted by Stephen.  Watch out for our spring newsletter which will feature a round up of the ABTOF Conference, and the Travlaw LLP highlights.  

Stephen@travlaw.co.uk & Rivka@travlaw.co.uk

Work Experience Podcast

In March 2009, we had the pleasure of a visit from work experience students Charlotte and Ellie, who are at present studying for their A levels. The students travelled all the way from Kent to come along to our office here in Leeds to conduct their placement, and get involved in the fascinating world of travel law!

We would like to say that the girls were a delight to have on board, and really excelled! We hope their experience assisted in deciding whether they wish to pursue a career in the law.

 The girls whilst on placement got involved with a number of exciting tasks, including attending court, conducting legal research and preparing the podcast - see attached!

If you are interested in taking part in work experience or would like any further information please email charlotte@travlaw.co.uk with a copy of your CV.

One of the things we have been monitoring carefully here at Travlaw is the new set of procedures brought into force by the EU in Dec 2008 & Jan 2009 for making and enforcing claims within the EU.  These procedures have the aim of bringing European Member States closer together in terms of cross border disputes and debt recovery, and as tools for companies in England & Wales these procedures could yet prove to be very, very useful.  

In particular we believe that the European Small Claims Procedure (ESCP), European Order for Payment (EOP) and European Enforcement Order (EEO) all present opportunities for our clients where disputes have arisen with suppliers in Europe. The thrust of these procedures is that they are designed to be efficient, relatively quick and, critically, you shouldn’t have to travel anywhere to use them – any actions can likely be brought right here in the UK! So, should you have any disputes ongoing, or looming, where you might benefit from discussing some options please do not hesitate to contact Matt. Matt@Travlaw.co.uk

Kylie and Charlotte will be attending the BETA Workshop in London at the Thistle Hotel, Marble Arch London, on Wednesday 6th May 2009.

‘We will be there all day providing a free legal workshop. Do feel free to pop along for a chat.’

 They will be providing a legal workshop answering your questions on:-

• Any litigation questions or queries you may have.
• Advice on booking conditions, and selling as Principal or Agent.
• The Package Travel etc Regulations 1992.
• Employment Law- Contracts,  claims, the disciplinary process and making redundancies.
• Supplier Contracts/ Contractual advice.

Or any other legal issues which you require ‘free’ advice on! (Or do feel free to pop by their stand, just to say hello!)

‘We look forward to seeing you soon!’

Kylie@travlaw.co.uk and Charlotte@travlaw.co.uk