Human and trademark rights collide in ALLOS Case

United Kingdom
In Patel v Allos Therapeutics Inc, a dispute in which human and trademark rights came into conflict, the Chancery Division of the High Court of England and Wales has ruled in favour of the trademark owner.
Allos Therapeutics Inc, an international biopharmaceutical company, owned US registrations for the trademarks ALLOS and ALLOSTHERAPEUTICS INC. Pankajkumar Patel, a horticulturalist, did not trade in the pharmaceutical sector. However, he developed the habit of registering the names of companies - including Allos - as domain names in order to expose what he perceived to be the evils of the pharmaceutical industry. Patel's sites were acquired in the hope of directing internet users searching for a particular company to a website in the name of the company on which the company's logo was displayed. After having had a full view of the home page, the internet user would then be treated to a disclaimer or would come to realize that the site was unconnected to the target company.

In the present case, the parties had already agreed to an Internet Corporation for Assigned Names and Numbers Uniform Dispute Resolution Procedure (UDRP), in which the panel had ordered that the ‘’ and ‘’ domain names be transferred to Allos.
Patel subsequently filed suit against Allos, seeking to have the UDRP process set aside on unspecified grounds under the Human Rights Act 1998. According to Patel, the panel's decision infringed his right to freedom of expression under Article 8 of the European Convention on Human Rights. Patel also alleged defamation, malicious falsehood and wrongful threats to sue for trademark infringement. In response, Allos applied for:
  • the claim to be struck out on the grounds that it disclosed no reasonable cause of action; or
  • summary judgment on the basis that Patel had no real prospect of succeeding and that there was no other compelling reason why the matter should go to trial.
Sonia Proudman QC, sitting as a deputy judge of the Chancery Division, granted Allos's application. She observed that freedom of expression was not an unqualified right: it had to be balanced against the rights of others, such as the rights of a minority not to suffer abuse or, in this case, the rights of a trademark owner freely to enjoy its own rights and property. Therefore, Patel could not succeed because:
  • he used a domain name without offering any indication that it was a protest site; and
  • the site featured Allos's own trademark.
According to the judge, it was hardly free speech to use a domain name and trademarks that internet users would (and were intended to) associate with Allos in order to trick them, nor was there any active criticism, or link to any criticism. As the judge stated:
"[Patel] cannot accept that he is the aggressor, not the victim. He is not debarred from making legitimate criticisms of pharmaceutical companies, or from setting up proper criticism websites from which he and others might do so. Instead, he had chosen to usurp names and logos contrary to the UDRP policy".
Jeremy Phillips, IP consultant to Olswang, London

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