Earth Cyrmu Network's Building Virtual Networks Tour
A. N. Other | 28.01.2003 19:23
Our reference: RM/CP/8681/3
Date: 27 January 2003
Friends of the Earth Cymru Limited
Clwyty
Pantscythan Fach
Panteg Cross
Llandysul
Ceredigion
SA44 4SN
And by e-mail:
foe-cymru@foe.co.uk
c.c. mobbsey@gn.opc.org
T Shaw Esq
Pantglas
Llanwrda
Camarthenshire
SA19 8BW
And by fax: 01558 685353
And e-mail: timshaw@gn.apc.org
R Whitehead Esq
Penlanas Uchaf
Rhydlewis
Nr Llandysul
Ceredigion
SA44 5SD
Dear Sirs
URGENT - Regarding "Earth Cyrmu Network's Building Virtual Networks Tour"
Please give this message your urgent attention as it raises matters of which our client has only just become aware and which may lead the Court to order an immediate interim injunction against you.
Last Friday we were supplied with a copy of an e-mail circular which was sent by Paul Mobbs concerning a series of events called "Earth Cyrmu Network's Building Virtual Networks Tour" together with an accompanying press release. The e-mail sets out the tour programme which, it is said, commences at 7.30 pm this evening, Monday 27 January, at Clwb y Bont, 85a Taff Street, Pontypridd and will continue at various venues in Wales until 7 February.
The said e-mail invites recipients to click on "the Earth Cyrmu Network Tour page" at www.fraw.org.uk/earthcymru/vn_tour/. That URL in turn contains links to various pieces of information about the said tour, including a link to the main "Building Virtual Networks" report at the following URL:
www.fraw.org.uk/earthcymru/networks_report/new_networks.shtml.
As you know, your use of any name that includes the words "Friends of the Earth" or anything colourably similar thereto is at the heart of our client's complaint against you in Friends of the Earth Limited v. Friends of the Earth Cymru Limited and Others, Claim No: HC02CO3438. However, until now our client had assumed that you had not yet used such a name in any way other than for purely internal or administrative purposes such as communications among yourselves, with us and our client, and with the Patent Office, Companies House etc.
It now appears that we were incorrect in our assumption and that you have already used (and are intending to continue to use) such a name in the context of the imminent Earth Cyrmu Network tour. For example, we find that the "Building Virtual Networks" report at the above URL contains no less than 12 uses of the name "Friends of the Earth Cyrmu" as a reference to the First Defendant and its activities. We can only assume that the said report has already been accessed and/or downloaded by a number of third parties and that you intend to use the report on your tour in the manner outlined in Mr Mobbs e-mail.
THE PURPOSE OF THIS LETTER IS TO INFORM YOU THAT IF, PENDING THE OUTCOME OF PROCEEDINGS IN CLAIM NO: HC02CO3438, YOU MAKE ANY USE OF THE WORDS "FRIENDS OF THE EARTH" IN ANY MANNER OTHER THAN AS A REFERENCE TO OUR CLIENT, WE ARE INSTRUCTED, WITHOUT FURTHER NOTICE TO YOU, TO SEEK AN IMMEDIATE INTERIM INJUNCTION AGAINST YOU.
As regards your use of the name "Earth Cymru Network", we have advised our client that such is colourably similar to the name "Friends of the Earth Cyrmu" in respect of which our client has registered trade mark rights and rights in passing off under common law. However, our client has no wish to prevent you carrying out environmental campaigning under a name which causes no confusion or deception. Accordingly, while we must at this stage reserve the right to extend in future any order for an interim injunction to cover use of the name "Earth Cyrmu Network", our client is prepared to wait for any evidence of confusion or deception before doing so.
As you are not legally represented, we will now explain the position to you in greater detail.
Our intention is to immediately apply to the Court for an interim injunction if you do any of the following acts:-
Distribute or continue to distribute (which term includes making available on a web page or transmitting by e-mail to any third party) the "Building Virtual Networks" report in its current form. You should therefore immediately remove the report in its current form from any publicly available section of any website controlled by you. You may re-post or re-distribute the said report anywhere you like provided that you remove all uses of the words Friends of the Earth not being a reference to our client.
Distribute or continue to distribute any other literature that contains references to Friends of the Earth, not being a reference to our client.
Make any other use of the Friends of the Earth name, not being a reference to our client. You should also note that use of a trade mark under the Trade Marks Act 1994 (and passing off under common law) includes oral use, so you may not refer to Friends of the Earth (other than when referring to our client) in the context of giving talks, lectures or training.
We require your confirmation as soon as possible and in any event by no later than 4.30 pm today that you are prepared to cease the use complained of. Given that your tour commences this evening, it is imperative that you act quickly. Therefore we have prepared written undertakings which we would ask you to sign and return to us immediately. A director of the First Defendant may sign on its behalf. The Second and Third Defendants must sign the undertakings personally.
Please note that the undertakings sought only relate to the comfort that our client requires in order not to seek an immediate interim injunction restraining your use of the words Friends of the Earth or any name colourably similar thereto pending trial or other determination of the proceedings in Friends of the Earth Limited v. Friends of the Earth Cymru Limited and Others, Claim No: HC02CO3438. Returning such signed undertakings will not result in that claim against you being compromised, settled or otherwise terminated. That claim is currently subject to a one month stay to allow the parties to negotiate. Needless to say, your proposed launch of the "Earth Cyrmu Network" tour in its current form is hardly conducive to an atmosphere of settlement.
As you know, we have advised you throughout to seek legal advice. You have chosen not to. We reiterate that our client's claim raises matters of intellectual property law which is a very specialised area and which, judging by the content of your recent "Defences" and the nature of your recent actions, you seem not to understand fully. In addition, this letter raises matters of civil procedure (i.e. interim injunctions) with which we doubt you are familiar. Please take professional legal advice now as a matter of urgency.
Yours faithfully
Simons Muirhead & Burton
--------------------------------------------------------------------------------
RM CP 8681/3
27 January 2003
To: Friends of the Earth Limited
c/o Simons Muirhead & Burton
50 Broadwick Street
London W1F 7AG
By fax to: 020 7734 3263
Dear Sirs
You have issued High Court proceedings against us in Friends of the Earth Limited v. Friends of the Earth Cymru Limited and Others, Claim No: HC02CO3438. In consideration of your agreeing not to apply for an interim order pending trial, WE HEREBY AGREE AND UNDERTAKE as follows:-
Whether acting by ourselves or by any servants, agents, directors or any company or otherwise howsoever, we will-
1.1.Immediately cease and desist from distributing or continuing to distribute any document, message or publication that contains any use of the words "Friends of the Earth" other than as a reference to you. For the avoidance of doubt, we accept that this undertaking covers the making available on any publicly-available web page and/or the transmission to any third party by e-mail. However nothing in this undertaking shall affect our right to continue to post our statements of case (and the annexures thereto) in Claim No: HC02CO3438 at the following URL, namely www.fraw.org.uk/foeslapp.
1.2.Immediately cease and desist from making any oral use of the words "Friends of the Earth", other than as a reference to you. For the avoidance of doubt, we accept that this undertaking covers all verbal communications by us to any third party, whether in person or by telephone and whether in the context of lectures, talks, training exercises or otherwise howsoever.
That we will within 7 days hereof remove or obliterate any uses that we have made of the words "Friends of the Earth" other than as a reference to you in any documents, materials or publications that are in our possession, custody or control. For the avoidance of doubt, we accept that this undertaking covers any such documents, materials or publications that are posted on any publicly-available website controlled by us but that nothing in this undertaking shall affect our right to continue to post our statements of case (and the annexures thereto) in Claim No: HC02CO3438 at the following URL, namely www.fraw.org.uk/foeslapp.
That within 14 days hereof we will make and serve a witness statement containing a statement of truth in accordance with CPR Part 22 confirming our complete compliance with the above undertakings.
We understand that signing and returning these undertakings and the said witness statement will not result in the compromise, settlement or withdrawal or the claim in Friends of the Earth Limited v. Friends of the Earth Cymru Limited and Others, Claim No: HC02CO3438 which has been commenced against us and in respect of which you propose to continue to claim a final injunction together with damages or an account of profits, your legal costs and such other relief as is set out in your particulars of claim therein.
Yours faithfully
. . . . . . . . . . . . . . . . . . . . . . . . . .
Signed
. . . . . . . . . . . . . . . . . . . . . . . . . .
Full name
. . . . . . . . . . . . . . . . . . . . . . . . . .
Date
Date: 27 January 2003
Friends of the Earth Cymru Limited
Clwyty
Pantscythan Fach
Panteg Cross
Llandysul
Ceredigion
SA44 4SN
And by e-mail:
foe-cymru@foe.co.uk c.c.
mobbsey@gn.opc.org T Shaw Esq
Pantglas
Llanwrda
Camarthenshire
SA19 8BW
And by fax: 01558 685353
And e-mail:
timshaw@gn.apc.org R Whitehead Esq
Penlanas Uchaf
Rhydlewis
Nr Llandysul
Ceredigion
SA44 5SD
Dear Sirs
URGENT - Regarding "Earth Cyrmu Network's Building Virtual Networks Tour"
Please give this message your urgent attention as it raises matters of which our client has only just become aware and which may lead the Court to order an immediate interim injunction against you.
Last Friday we were supplied with a copy of an e-mail circular which was sent by Paul Mobbs concerning a series of events called "Earth Cyrmu Network's Building Virtual Networks Tour" together with an accompanying press release. The e-mail sets out the tour programme which, it is said, commences at 7.30 pm this evening, Monday 27 January, at Clwb y Bont, 85a Taff Street, Pontypridd and will continue at various venues in Wales until 7 February.
The said e-mail invites recipients to click on "the Earth Cyrmu Network Tour page" at www.fraw.org.uk/earthcymru/vn_tour/. That URL in turn contains links to various pieces of information about the said tour, including a link to the main "Building Virtual Networks" report at the following URL:
www.fraw.org.uk/earthcymru/networks_report/new_networks.shtml.
As you know, your use of any name that includes the words "Friends of the Earth" or anything colourably similar thereto is at the heart of our client's complaint against you in Friends of the Earth Limited v. Friends of the Earth Cymru Limited and Others, Claim No: HC02CO3438. However, until now our client had assumed that you had not yet used such a name in any way other than for purely internal or administrative purposes such as communications among yourselves, with us and our client, and with the Patent Office, Companies House etc.
It now appears that we were incorrect in our assumption and that you have already used (and are intending to continue to use) such a name in the context of the imminent Earth Cyrmu Network tour. For example, we find that the "Building Virtual Networks" report at the above URL contains no less than 12 uses of the name "Friends of the Earth Cyrmu" as a reference to the First Defendant and its activities. We can only assume that the said report has already been accessed and/or downloaded by a number of third parties and that you intend to use the report on your tour in the manner outlined in Mr Mobbs e-mail.
THE PURPOSE OF THIS LETTER IS TO INFORM YOU THAT IF, PENDING THE OUTCOME OF PROCEEDINGS IN CLAIM NO: HC02CO3438, YOU MAKE ANY USE OF THE WORDS "FRIENDS OF THE EARTH" IN ANY MANNER OTHER THAN AS A REFERENCE TO OUR CLIENT, WE ARE INSTRUCTED, WITHOUT FURTHER NOTICE TO YOU, TO SEEK AN IMMEDIATE INTERIM INJUNCTION AGAINST YOU.
As regards your use of the name "Earth Cymru Network", we have advised our client that such is colourably similar to the name "Friends of the Earth Cyrmu" in respect of which our client has registered trade mark rights and rights in passing off under common law. However, our client has no wish to prevent you carrying out environmental campaigning under a name which causes no confusion or deception. Accordingly, while we must at this stage reserve the right to extend in future any order for an interim injunction to cover use of the name "Earth Cyrmu Network", our client is prepared to wait for any evidence of confusion or deception before doing so.
As you are not legally represented, we will now explain the position to you in greater detail.
Our intention is to immediately apply to the Court for an interim injunction if you do any of the following acts:-
Distribute or continue to distribute (which term includes making available on a web page or transmitting by e-mail to any third party) the "Building Virtual Networks" report in its current form. You should therefore immediately remove the report in its current form from any publicly available section of any website controlled by you. You may re-post or re-distribute the said report anywhere you like provided that you remove all uses of the words Friends of the Earth not being a reference to our client.
Distribute or continue to distribute any other literature that contains references to Friends of the Earth, not being a reference to our client.
Make any other use of the Friends of the Earth name, not being a reference to our client. You should also note that use of a trade mark under the Trade Marks Act 1994 (and passing off under common law) includes oral use, so you may not refer to Friends of the Earth (other than when referring to our client) in the context of giving talks, lectures or training.
We require your confirmation as soon as possible and in any event by no later than 4.30 pm today that you are prepared to cease the use complained of. Given that your tour commences this evening, it is imperative that you act quickly. Therefore we have prepared written undertakings which we would ask you to sign and return to us immediately. A director of the First Defendant may sign on its behalf. The Second and Third Defendants must sign the undertakings personally.
Please note that the undertakings sought only relate to the comfort that our client requires in order not to seek an immediate interim injunction restraining your use of the words Friends of the Earth or any name colourably similar thereto pending trial or other determination of the proceedings in Friends of the Earth Limited v. Friends of the Earth Cymru Limited and Others, Claim No: HC02CO3438. Returning such signed undertakings will not result in that claim against you being compromised, settled or otherwise terminated. That claim is currently subject to a one month stay to allow the parties to negotiate. Needless to say, your proposed launch of the "Earth Cyrmu Network" tour in its current form is hardly conducive to an atmosphere of settlement.
As you know, we have advised you throughout to seek legal advice. You have chosen not to. We reiterate that our client's claim raises matters of intellectual property law which is a very specialised area and which, judging by the content of your recent "Defences" and the nature of your recent actions, you seem not to understand fully. In addition, this letter raises matters of civil procedure (i.e. interim injunctions) with which we doubt you are familiar. Please take professional legal advice now as a matter of urgency.
Yours faithfully
Simons Muirhead & Burton
--------------------------------------------------------------------------------
RM CP 8681/3
27 January 2003
To: Friends of the Earth Limited
c/o Simons Muirhead & Burton
50 Broadwick Street
London W1F 7AG
By fax to: 020 7734 3263
Dear Sirs
You have issued High Court proceedings against us in Friends of the Earth Limited v. Friends of the Earth Cymru Limited and Others, Claim No: HC02CO3438. In consideration of your agreeing not to apply for an interim order pending trial, WE HEREBY AGREE AND UNDERTAKE as follows:-
Whether acting by ourselves or by any servants, agents, directors or any company or otherwise howsoever, we will-
1.1.Immediately cease and desist from distributing or continuing to distribute any document, message or publication that contains any use of the words "Friends of the Earth" other than as a reference to you. For the avoidance of doubt, we accept that this undertaking covers the making available on any publicly-available web page and/or the transmission to any third party by e-mail. However nothing in this undertaking shall affect our right to continue to post our statements of case (and the annexures thereto) in Claim No: HC02CO3438 at the following URL, namely www.fraw.org.uk/foeslapp.
1.2.Immediately cease and desist from making any oral use of the words "Friends of the Earth", other than as a reference to you. For the avoidance of doubt, we accept that this undertaking covers all verbal communications by us to any third party, whether in person or by telephone and whether in the context of lectures, talks, training exercises or otherwise howsoever.
That we will within 7 days hereof remove or obliterate any uses that we have made of the words "Friends of the Earth" other than as a reference to you in any documents, materials or publications that are in our possession, custody or control. For the avoidance of doubt, we accept that this undertaking covers any such documents, materials or publications that are posted on any publicly-available website controlled by us but that nothing in this undertaking shall affect our right to continue to post our statements of case (and the annexures thereto) in Claim No: HC02CO3438 at the following URL, namely www.fraw.org.uk/foeslapp.
That within 14 days hereof we will make and serve a witness statement containing a statement of truth in accordance with CPR Part 22 confirming our complete compliance with the above undertakings.
We understand that signing and returning these undertakings and the said witness statement will not result in the compromise, settlement or withdrawal or the claim in Friends of the Earth Limited v. Friends of the Earth Cymru Limited and Others, Claim No: HC02CO3438 which has been commenced against us and in respect of which you propose to continue to claim a final injunction together with damages or an account of profits, your legal costs and such other relief as is set out in your particulars of claim therein.
Yours faithfully
. . . . . . . . . . . . . . . . . . . . . . . . . .
Signed
. . . . . . . . . . . . . . . . . . . . . . . . . .
Full name
. . . . . . . . . . . . . . . . . . . . . . . . . .
Date
A. N. Other
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