The Law of Electronic Commerce

The Law of Electronic Commerce

Alan Davidson

Language: English

Pages: 438

ISBN: 052167865X

Format: PDF / Kindle (mobi) / ePub

Written specifically for legal practitioners and students, this book examines the concerns, laws and regulations involved in Electronic Commerce. In just a few years, commerce via the World Wide Web and other online platforms has boomed, and a new field of legal theory and practice has emerged. Legislation has been enacted to keep pace with commercial realities, cyber-criminals and unforeseen social consequences, but the ever-evolving nature of new technologies has challenged the capacity of the courts to respond effectively. This book addresses the legal issues relating to the introduction and adoption of various forms of electronic commerce. From intellectual property, to issues of security and privacy, Alan Davidson looks at the practical changes for lawyers and commercial parties whilst providing a rationale for the underlying legal theory.














144 LAW OF ELECTRONIC COMMERCE administrators initiated a compulsory Uniform Dispute Resolution Policy (URDP) for registrants. These two options remain in most jurisdictions today. Remedies using the court process Electronic commerce has been embraced by a broad range of bodies and individuals, for commercial and personal reasons. In the majority of situations standard legal principles can resolve the issues. However, new technologies may permit new relationships and interactions at a scale not previously anticipated.

66 The issue before the court was whether the automatic insertion of a person’s email address after the document has been transmitted constitutes a signature for the purposes of Statute of Frauds. His Honour’s conclusion was an email address insertion was ‘incidental’. The header is ‘divorced from the main body of the text of the message’. If there is no further evidence in relation to the maker’s intention, ‘it is not possible to hold that the automatic insertion of an email address is . . . intended for a signature’.

150 LAW OF ELECTRONIC COMMERCE In India, the Supreme Court has held that Indian trade mark laws provides direct protection for domain names. In Satyam Infoway Ltd v Siffynet Solutions Pvt Ltd,33 the plaintiff was one of India’s largest internet service providers (ISPs) and claimed to have formulated the word ‘SIFY’ from its corporate name, ‘Satyam Infoway’, and to have established a global reputation and goodwill in the name. Its domain name was www. sify. com. The defendant used the domain names www.

24 15 USC 1129. 25 [2002] FCA 124. DOMAIN NAME DISPUTES 149 where two domain names are sufficiently similar so as to make it difficult for a member of the public to know in advance exactly which site they will be taken to (as, for example, where the only difference between them is the presence or absence of ‘. au’), there is considerable scope for the public to be misled. 26 In Campomar Sociedad, Limitada v Nike International Limited27 the High Court of Australia (in obiter) stated that subsections 120(3) and (4) have: extended the infringement action to restrain activities which are likely adversely to affect the interests of the owner of a ‘famous’ or ‘well-known’ trade mark by the ‘dilution’ of its distinctive qualities or of its value to the owner.

Supp. 2d 1220 (1997). 20 For example Trade Marks Act 1995 (Cth) s120; Trade Marks Act 2002 (New Zealand) s89(1)(d); Trade Marks Act 1999 (India) s29; Trade Marks Act 1994 (UK) s10. 21 15 USC s1125(d)(2)(C). 148 LAW OF ELECTRONIC COMMERCE used in the sale or advertising of services. If a service mark is famous, the same remedies are available if the domain name is identical to, confusingly similar to or dilutive of the mark. In the US, trade mark and service mark rights can be acquired by registration or through usage at common law.

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