Archive for May, 2010

New draft of BS8878 on web accessibility published for consultation

The British Standards Institute has just released a new draft of the proposed new British Standard, BS 8878:2010: Web Accessibility – A Code of Practice.

The proposed standard will replace the existing Publicly Available Specification on commissioning accessible websites (PAS78: 2006 Guide to good practice in commissioning accessible websites), and will provide a code of practice for those designing websites. It is not intended as technical guidance, or to replace existing technical standards or guidelines (such as the W3C‘s WCAG, but rather provide guidance (or a “process map”) to those involved in the commissioning process.

This second draft follows a previous consultation in December 2008. The intention is that the new standard will be finalised in November this year. Going forward, it is likely that organisations looking to commission new websites and online services will increasingly refer to compliance with BS 8878.

You can take part in the consultation at by visting the BSI online consultation page.

New Arrival at Brodies – Will McIntosh

Will McIntosh joined Brodies last month.

Will is a corporate lawyer : dealing with murders and acquisitions etc.  However,  he has a background in technology.  In paticular in relation to funding technology companies, setting up technology parks/institutes and university spin-out work. 

He was also named as “Corporate Lawyer of the Year” at the Law Awards of Scotland 2009/2010

You can read more about Will, and see his photo,  here

I have persuaded Will to become one of our bloggers – so hopefully you can read some of his stuff fairly soon.

p.s. – I know it should be “Mergers and Acquisitions.” My typo is a homage to American Psycho 

p.p.s – Will is not a Psycho.

New UCTA and IT Contract Case – Red Sky

This is an entry for the law geeks out there. 

I just read Kingsway Hall Hotel Ltd v. Red Sky IT.  What a terrible decision!  For those who want to read it the key paragraphs are from paragraph 230 onwards. 

The Judge decided that an exclusion of implied warranties in an IT contract was “unreasonable” and therefore could be struck out under the Unfair Contract Terms Act 1977 (commonly known as “UCTA”).  The rationale was that the express warranty given in place of the implied warranties was a “compliance with spec” warranty, but the purchaser had not seen the spec pre-contract and therefore had no warranty protection!

Here is some context.  Under UCTA the Court has the power to delete certain contract terms if they are “unreasonable”.   For a supplier this is a worry because the Court might delete your limit of liability clause leaving you with unlimited liability!  However, since 2001 (the Watford Case) the Courts have been reluctant to interfere with agreed contract terms unless there was a massive imbalance in bargaining position. This new case seems to go against that thinking.

In Red Sky case the Judge found the parties did not have equal bargaining position (a decision I find unsupported by the evidence).  In fact I don’t know what Red Sky did to annoy the Judge quite so much as the decision seems to me to be without any real basis in fact or law.

Also, the Judge spent a lot of time discussing whether an exclusion of implied warranties was reasonable, but did not  discuss the cap on liability or the exclusions of liability.  Bizarre!

The only practical lesson I can draw from the judgement is that if you (as a supplier) warrant that your software complies with its specification / manuals then you have to deliver those materials pre-contract. (Even that strikes me as wrong.)

I really hope Red Sky appeals this one.

Brodies TIO Group shortlisted for Tech Team of the Year

We are thrilled to announce that Brodies’ Technology Information and Outsourcing Group has been shortlisted for the Technology, Media and Telecoms (TMT) Team of the Year award at this year’s Lawyer Awards, the awards ceremony organised by The Lawyer magazine.

The nomination recognises the team’s recent work on a ground-breaking first generation ATM and debit card outsourcing project, and follows on from the National Outsourcing Association jointly naming the head of Brodies’ outsourcing team, Andrew Rigby, as Outsourcing Professional of the Year at the 2009 National Outsourcing Association Awards.

For more details see the official press release. The awards take place in London on 22 June 2010.

New Lingo Alert – BAdword

..following on from my posts about using a competitor’s brand as a Google Adword (or indeed as a keyword in any online advertising system) Martin and I have come up with some new lingo.

BAdword” an Adword that is a competitor’s brand or trade mark.

If you like this then you will probably like Wired’s Jargon Watch Section. Here is a link to the April 2010 Jargon Watch.

Googlemail becomes gmail again

Google has today reported that it will now be-introducing the Gmail brand to its email service in the UK, ending a long-running trade mark dispute.

When Gmail was first launched by Google, a number of organisations in a number of countries around the world claimed that they already had rights in the “Gmail” mark, and that Google’s new service would infringe those rights. In the UK, that organisation was a company called Independent Investment Research (IIR), which claimed that it had been using the mark (albeit in an unregistered form) since 2002 in relation to an online information tool. Although Google launched the service as a beta in April 2004, it did not seek community trade mark protection (CTM) in the European Union until March 2005.

In October 2005, following a failure to reach a settlement, Google announced that it was rebranding its UK service as “Google Mail”, and that new users would receive an “” email address, rather than an “” address.

It appears that Google and IIR have now resolved their differences (or IIR has agreed an acceptable settlement fee with Google), and that Google Mail will now be rebranded once again as Gmail. Perhaps uncoincidentally, I see from the IPO‘s website that four and half years after the initial application “Gmail” was finally registered as a CTM on 22 December 2009.

Interestingly, although Google publicly rebranded Gmail in the UK in 2005, behind the scenes nothing really changed. This is because Google still owned the core domain name (the ownership of which was not being challenged), and its systems are built around email addresses being allocated to – it does not allow separate users to have and I have had my Gmail address since 2004, and throughout the dispute continued sending and receiving email to my “” email address. Similarly, whilst when signing up in 2006 Joe Bloggs may have been given the email address address, and the webpage he used to access his account was branded “Google Mail”, he could still receive email sent to – it just wasn’t promoted. From a passing off perspective, would probably have struggled to make a claim stick, as Google had ceased actively offering a service in the UK under the “Gmail” mark.

In the end, both parties have probably got what they want, but it is unlikely to have come cheap. Whilst Google may have decided from the outset to play the long game in its dispute with IIR, what the case does do is show the importance of carrying out diligence on your proposed brand name before you launch, and in each country where you intend to trade. The fact that you have secured the .com domain name does not mean that you are automatically entitled to use that mark in every country around the world. Local diligence is crucial.

Twitter: @BrodiesTechBlog feed

May 2010
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