Setting the Scene
You are to imagine that you are the general manager of Cascade
Adventure Tours Limited (?Cascade?) which is a New Zealand registered
company based in Christchurch. Cascade?s principal business involves
providing various types of tours (which may not include adventure
activities such as white-water rafting) to people (New Zealand and
tourists) within New Zealand.
As part of your role, you are required to instruct and liaise with the
company?s lawyers concerning issues that arise. You are also required
to make decisions as to whether the company will consult its lawyers
at all whenever a new issue arises. If you decide that company will
instead deal with the situation itself, it is your role to decide how.
Please answer the following questions in view of your responsibilities
as general manager.
Question
Copycat Tours Limited (Copycat) operates a website from which it
offers a variety of tours. It specialises in adventure tours offering
activities such as white water rafting, bungy jumping, swimming with
dolphins and heli-skiing. There is a section on it website which
states:
?Whether its action, adventure or just chilling out, we offer the
complete New Zealand experience?
By clicking ?action? the browser is immediately linked to white water
rafting images within the website of Cascade. The images clearly show
people rafting down a river in Cascade?s distinctive bright pink
rafts. Because of the deep linking technique used, browsers are
unaware that they have left the Copycat site when viewing this image.
The browser then returns to the Copycat site to be led through the
rest of the ?action? details by an animated cartoon character in a
pink raft. As general manager for Cascade, you are aware that Cascade
is the only business offering outdoor adventures with bright pink
rafts and that it has spent considerable time and money building up
what is now a thriving business using the pink rafts in its logo and
marketing material generally. You are concerned that people will be
confused into thinking there is an association between the two
businesses and that Cascade will loose business as a result.
It has become apparent that Cascade has now exhausted its budget for
legal fees for the financial year. You are therefore hoping to resolve
the situation without consulting the company?s lawyers. You decide to
send Copycat a letter requiring it to put and end to the deep linking
and to stop using the colour pink for rafts in its website and its
business generally, but need to clarify your thinking first. Set out
and explain in detail the legal grounds Cascade might rely on for the
basis of its letter. Include authorities such as relevant case law and
legislation and any references in you answer |
