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
Comments
Hide the following comment
Our FOE now an Enemy? (indycymru comment)
30.01.2003 10:11
by Ilyan on Jan 30, 2003 - 09:38 AM
This came in my emails. It seems that the Corporation Directors who now run FOE are intent on its destruction. Just as Blair's one objective is to make socialism impossible in the UK through corrupting the Labour Party, ( It is a giggle really, when Capitalism is collapsing around their ears they are determined to destroy any alternative) FoE is determined to destroy activism.
How stupid can they get? They certainly need training in personel management. Tim Shaw can be awkward, and has an unfortunate attitude of sticking to moral principles. His resignation was enough. To pursue the vendetta against him is crass stupidity. It does Tim Shaw no harm, it makes his stand on principles even more justified.
Why are people's contributions to FOE being wasted on lawyers?
Ilyan
this is what came:
I've been asked to fw this.
It concerns campaigning in Wales.#
....................................
Paul Mobbs
3 Grosvenor Road,
Banbury OX16 5HN.
Tel./fax 01295 261864
Email
29th January 2003
No restriction on circulation (forward freely)
Statement regarding the cancellation of the "Building Virtual Networks" tour
This statement may seem to be a little vague. That is because I am apparently
prohibited from using the names of two organisations, let's call them 'The
Company' and 'The Committee', in public or private. This is because I am the
technical director of 'The Company', and as such I'm injuncted by Friends of the
Earth Limited. Although this statement is being issued in a personal capacity, as
a consultant and administrator of the www.fraw.org.uk web site, for safety I am
not going to relay either of these names.
The background
In early 2002, Friends of the Earth Limited ejected people from its organisation
that were part of its Welsh campaigning network by closing the Network down.
Many of those involved went to to set up a new organisation, 'The Committee'. The
object of The Committee was to set up a new campaigning network in Wales, and to
work to increase the networking capacity of all grassroots groups in Wales, by
whatever means, to improve the common interests of all.
In mid-2002, two of the people involved with 'The Committee' decided to set up
'The Company'. The idea was that at a future date it could take on some of the
more legally complicated aspects of campaigns in Wales, working together with The
Committee and other grassroots organisations in Wales, as a vehicle to get things
done (but not to lead campaigns).
In late September 2002, at a meeting of The Committee, it was agreed that we'd
start planning a tour of Wales in late January to raise awareness of the
opportunities for virtual networking. In early November 2002, as part of a report
I wrote for The Committee, I outlined the possibilities for allowing people to
work online across Wales if The Committee worked to develop an online system to
allow this to happen.
In August 2002, The Company received notice from Friends of the Earth Limited that
it was launching a legal action against it because the name of The Company
infringed their trademark rights. I became a director of The Company in September
2002 in order to donate my knowledge of online organising. In November 2002, The
Company received the formal legal claim from Friends of the Earth Limited. Since
then, myself and the other two individuals involved with The Company have been
contesting Friends of the Earth's action for trademark infringement on the basis
that they have no rights to The Company's name.
At no time, since the threat of legal action in August 2002, has the issue of the
name of The Committee been raised as part of the legal proceedings. In fact,
certain staff in Friends of the Earth Limited, when questioned in 2002, had
stated that the name of the Committee would be acceptable to them. This issue was
only raised on the day the Building Virtual Networks tour was due to start.
The Injunction
What has changed is that this month the solicitors for Friends of the Earth
Limited have advised Friends of the Earth Limited that the name of The Committee
breaches their trademark. This is because it is 'colorably similar'. This despite
the fact that Friends of the Earth Limited's trademark, company name and articles
do not contain the Welsh word for Wales (I'm not saying it to be on the safe
side).
When Friends of the Earth learnt of the Building Virtual Networks tour they asked
their solicitors to give them advice. This resulted in a warning letter to the
members of the committee organising the tour. In our view, there was no
similarity between the name of Friends of the Earth Limited and The Committee. We
also knew that certain FoE staff had accepted the name previously. We therefore
declined to sign the undertakings from FoE's solicitors, and stated our desire to
continue with the tour.
On Monday 27th January we proceeded with our Pontypridd workshop as planned. On
the afternoon of Tuesday 28th we received a phone call from Friends of the
Earth's lawyers stating that they were applying for an injunction at that moment
(we inferred they didn't want us to set out to Narberth and so be out of
communication). They later phoned to confirm that the order had been granted. At
that stage we decided it was necessary to abandon the workshop in Narberth. Later
that evening we received a copy of the injunction.
According to the documentation submitted by Friends of the Earth's solicitors,
they state that The Committee is a new online organisation being established as
part of the 'Building Virtual Networks' tour. Other parts of their evidence to
the court are also factually incorrect, and do not relate to the contents of
documentation they already had copies of which outlined the relationship between
The Committee and The Company. In fact, from August 2002 onward, they have
continually refused to meet and have a dialogue with those involved on this
issue. We believe they refused these offers of meeting because they would have to
address the factual inaccuracies of their case as part of such a meeting.
To continue with the tour would not only endanger those involved with The Company
- - - - to whom the injunction is addressed. It would also endanger the well-being of
members of The Committee who, by implication, are considered to be bound by the
injunction. Given this situation, we feel we can do nothing else but call-off the
tour.
In their evidence Friends of the Earth state that they have 'no wish to stop the
tour'. However the whole organisation of the tour is inextricably bound up within
the name of The Committee. Everything is in The Committee's name. The people
providing the main support for the tour (because they have the skills or time to
make the tour happen) are involved with The Company, further complicating the
application of the injunction. We feel there is no other option but to call-off
the tour because the factual inaccuracies of their claim make it difficult to
fully comprehend the scope of the injunction.
What's next
Those involved with the legal action launched by Friends of the Earth in November
2002 have not sought to publicise it in any way. However, this injunction is
clearly prejudicial to campaigners in Wales completely un-associated with The
Company. Tim Shaw and Ron Whitehead, as they are being sued as individuals,
cannot do anything further. The Committee also has a problem formally calling for
action because the individuals involved may be liable for using its name.
Therefore, I personally am calling for support to defend the rights of the
members of The Committee, and compensation from FoE for the cancellation of the
tour.
Over the next week or so I hope to consult with others to produce a strategy for
how we take forward a campaign to counter the actions of Friends of the Earth in
Wales. In the mean time, I suggest that those offended by Friends of the Earth's
actions - seeking to gag The Committee and blocking the Building Virtual Networks
tour - contact Friends of the Earth personally:
Address: Sam Clarke, Chair of the Board, Friends of the Earth,
26-28 Underwood Street, London N1 7JQ. Tel. 0207 490 1555.
Email: Friends of the Earth staff involved,
If you have any further queries please contact me by email:
will also post further information as issues progress at
......................................
Ilyan