Product Copyright
11 February 2002, 12:08 PM
#1
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Replica n : Any copy or close reproduction.
Fake adj : Having a false or misleading appearance; fraudulant.
Now my uderstanding is that the Prodrive spoiler was (and has always been) perceived as a Replica. I'm talking about the original thread that was pulled.
It has (to my knowledge) never been banded around as the genuine spoiler - thus misleading people. If it had been, then I would see the point of it being classed as a fake.
Just like every other spoiler, it has been advertised as a replica. Now, being a replica, the have *replicated* the spoiler to include the Prodrive logo.
I fully understand Prodrives problem with this and agree that it should not be supported by Scoobynet.
Of course, you could argue double standards since AFAIK no posts regarding ripping off the Prodrive/STI logos on stickers have never been pulled.
In fact, the Scoobynet Shop actively supports such things
Just my 2p worth and all IMHO.
Stefan
[Edited by ozzy - 11/2/2002 12:10:50 PM]
Fake adj : Having a false or misleading appearance; fraudulant.
Now my uderstanding is that the Prodrive spoiler was (and has always been) perceived as a Replica. I'm talking about the original thread that was pulled.
It has (to my knowledge) never been banded around as the genuine spoiler - thus misleading people. If it had been, then I would see the point of it being classed as a fake.
Just like every other spoiler, it has been advertised as a replica. Now, being a replica, the have *replicated* the spoiler to include the Prodrive logo.
I fully understand Prodrives problem with this and agree that it should not be supported by Scoobynet.
Of course, you could argue double standards since AFAIK no posts regarding ripping off the Prodrive/STI logos on stickers have never been pulled.
In fact, the Scoobynet Shop actively supports such things
Just my 2p worth and all IMHO.
Stefan
[Edited by ozzy - 11/2/2002 12:10:50 PM]
11 February 2002, 01:42 PM
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The trouble is there are people on here with no training in copyright law stating what they see as facts. Everyone see Prodrive as a company, people see STI as a model. Rightly or wrongly if one rule applies to using one brand name then it should apply to both. Must add I have no training in copyright law like 99.99999999999% of other members or moderators 
.
[Edited by chrisp - 11/2/2002 1:43:12 PM]
.[Edited by chrisp - 11/2/2002 1:43:12 PM]
11 February 2002, 02:04 PM
#3
edited for double post
can i just add, STI-subaru technica International, I have heard, are not happy with people selling their foglight covers replicas with their name on it (i know some suppliers on here are aware of this) and have put a stop to it as they are using their name.
it seems there is a fine line between the replicas and people selling copies as the genuine article and the problem will go on and on and on....
final word:
I fully support Scoobynet's decision to remove that thread
[Edited by rb5 286 - 11/2/2002 2:12:09 PM]
can i just add, STI-subaru technica International, I have heard, are not happy with people selling their foglight covers replicas with their name on it (i know some suppliers on here are aware of this) and have put a stop to it as they are using their name.
it seems there is a fine line between the replicas and people selling copies as the genuine article and the problem will go on and on and on....
final word:
I fully support Scoobynet's decision to remove that thread
[Edited by rb5 286 - 11/2/2002 2:12:09 PM]
11 February 2002, 05:15 PM
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I have to say this is really funny with lots of people spouting a lot of "knowledge" about intellectual property laws.
There are three issues here, none of which is copyright.
We have passing off which is a tort and as such comes under tort law,
trademark infringement which has its own statute in the form of the 1994 trademarks act,
and unregistered design right which forms part of the copyright designs and patents act, it is kind of like copyright but not exactly the same and too complex to go into now.
I would have thought prodrives complaint related to the false use of their trademark, in that it was imprinted on the spoiler be it replica or not.
If they have a registered trademark relating to this class of goods, then anyone else using it on those same goods is infringing their trademark and can be sued (but not always successfully).
If a company cannot sue under trademark infringement (becuase they dont have a valid registration for example) then they often sue for passing off. Passing off is a much bigger area of law and much harder to prove as it relies on many more conditions, such as proof of reputation, damage, misrepresentation, intentional deception etc.
if these things are advertised as replicas, even with the prodrive logo on, then a passing off action will most likely fail as there is no deception.
unregistered design right is the last alley way for suing under, but there is a whole load of case law on that relating to the ford motor Company attemtping to sue people for replicating their exhausts, and another one relating to replacing body panels. The ford cases went on for years, and eventually failed for two reasons which I wont go into now, but in short, in the same circumstances other car manufacturers are unlikely to bring a similar action.
In short, if prodrive do have their trademark registered, which I believe they do (anyone can search on the uk patent office website), then prodrive are within their rights to request these products not be advertised etc. They may even get an injunction to seize the products, and also bring anyone else in, in a joint action for contributory infringement (i.e it isnt good to arrange a group buy on such things).
btw. I am not an intellectual property lawyer, but I am a patent attorney and have had training in all the above.
[Edited by Adam M - 11/2/2002 7:04:37 PM]
There are three issues here, none of which is copyright.
We have passing off which is a tort and as such comes under tort law,
trademark infringement which has its own statute in the form of the 1994 trademarks act,
and unregistered design right which forms part of the copyright designs and patents act, it is kind of like copyright but not exactly the same and too complex to go into now.
I would have thought prodrives complaint related to the false use of their trademark, in that it was imprinted on the spoiler be it replica or not.
If they have a registered trademark relating to this class of goods, then anyone else using it on those same goods is infringing their trademark and can be sued (but not always successfully).
If a company cannot sue under trademark infringement (becuase they dont have a valid registration for example) then they often sue for passing off. Passing off is a much bigger area of law and much harder to prove as it relies on many more conditions, such as proof of reputation, damage, misrepresentation, intentional deception etc.
if these things are advertised as replicas, even with the prodrive logo on, then a passing off action will most likely fail as there is no deception.
unregistered design right is the last alley way for suing under, but there is a whole load of case law on that relating to the ford motor Company attemtping to sue people for replicating their exhausts, and another one relating to replacing body panels. The ford cases went on for years, and eventually failed for two reasons which I wont go into now, but in short, in the same circumstances other car manufacturers are unlikely to bring a similar action.
In short, if prodrive do have their trademark registered, which I believe they do (anyone can search on the uk patent office website), then prodrive are within their rights to request these products not be advertised etc. They may even get an injunction to seize the products, and also bring anyone else in, in a joint action for contributory infringement (i.e it isnt good to arrange a group buy on such things).
btw. I am not an intellectual property lawyer, but I am a patent attorney and have had training in all the above.
[Edited by Adam M - 11/2/2002 7:04:37 PM]
11 March 2002, 09:53 AM
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sorry richard,
difficult to detect sarcasm at that time of the morning
glad to hear you are looking forward to my rebuild!
After almost a year without my beloved car, I have to admit that I have given up thinking and dreaming about it.
I now have more exams right in front of me, and thanks to them have been able to put the project aside. Ironically the day of my last exam is the day that my crank arrives and allows them the commence building.
Most of the wait so far has been assembling the bits, either by purchasing or having them custom made.
Hopefully, all the is have been dotted and the ts have been crossed, so I should end up with a strong engine at the end and have Mark Aigin to thank for 95% of it.
[Edited by Adam M - 11/4/2002 11:48:44 AM]
difficult to detect sarcasm at that time of the morning
glad to hear you are looking forward to my rebuild!
After almost a year without my beloved car, I have to admit that I have given up thinking and dreaming about it.
I now have more exams right in front of me, and thanks to them have been able to put the project aside. Ironically the day of my last exam is the day that my crank arrives and allows them the commence building.
Most of the wait so far has been assembling the bits, either by purchasing or having them custom made.
Hopefully, all the is have been dotted and the ts have been crossed, so I should end up with a strong engine at the end and have Mark Aigin to thank for 95% of it.
[Edited by Adam M - 11/4/2002 11:48:44 AM]
02 November 2002, 09:10 AM
#6
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I'm not looking to open a can of worms here but was interested by the recent "discussion" regarding the sale of replica Prodrive spoilers through this site. I can see the moderators point of view and their desire to avoid legal action.
However, a quick trawl through the scoobynet shop reveals STi V spoiler copies, STi IV lip copies, fog lamp cover copies etc etc.
Am I missing something here? Sorry to be "controversial" but where is the line being drawn?
PS. As far as I'm aware the "Prodrive" spoiler was not an exact copy and didn't have prodrive written on it (unless there's another one doing the rounds)....?
However, a quick trawl through the scoobynet shop reveals STi V spoiler copies, STi IV lip copies, fog lamp cover copies etc etc.
Am I missing something here? Sorry to be "controversial" but where is the line being drawn?
PS. As far as I'm aware the "Prodrive" spoiler was not an exact copy and didn't have prodrive written on it (unless there's another one doing the rounds)....?
02 November 2002, 09:32 AM
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I'm sure that someone will disagree with me, but I would have thought that describing something as an STi type wing/lip etc, could be argued as a more generic term used to describe the shape of an item and the cars it wil fit.
On the other hand, the term 'Prodrive replica' is clearly decribing an item as being a copy of a Prodrive item. Not only that, but it could be argued that the person who is marketing this 'pirate copy' is using the Prodrive brand name and reputation to promote it.
Consequently, Prodrive would have grounds for complaint, not only from a Copyright standpoint, but on a Registered Trademark level as well.
Even if I'm only half right, I think the mods would have to be daft not to remove such an item.
Josh
On the other hand, the term 'Prodrive replica' is clearly decribing an item as being a copy of a Prodrive item. Not only that, but it could be argued that the person who is marketing this 'pirate copy' is using the Prodrive brand name and reputation to promote it.
Consequently, Prodrive would have grounds for complaint, not only from a Copyright standpoint, but on a Registered Trademark level as well.
Even if I'm only half right, I think the mods would have to be daft not to remove such an item.
Josh
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02 November 2002, 09:56 AM
#8
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Hmm, but the Prodrive spoiler wasn't an exact copy.
I'm not sure if it was marketed as a "Prodrive replica" or "Prodrive style".
Calling a product in the shop an "STI IV lip spoiler" when it is actually a copy is surely the bigger "crime"?
I have no actual interest in these products per se, this is more a general question....
I'm not sure if it was marketed as a "Prodrive replica" or "Prodrive style".
Calling a product in the shop an "STI IV lip spoiler" when it is actually a copy is surely the bigger "crime"?
I have no actual interest in these products per se, this is more a general question....
02 November 2002, 10:24 AM
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I totally agree with simonH here...!!!!
When you describe an STI V5 'style' spoiler like loads of sites and even this one, surly you are using the 'subaru' and the 'subaru technica international' name and trying to promote your product.....????
Im sure prodrive would not sue over one word in the tittle of a thread stateing prodrive 'replica' spoiler, if it went to court im sure they would want to see the spoiler in question and see if it had prodrive plastered on it which it cleary didnt...!!!!!!!
I just wonder if its because, if people start buying these spoilers it takes sales away from the scoobynet shop.....?????
Just my 2p worth..!
Dan
[Edited by dhorwich - 11/2/2002 10:35:55 AM]
When you describe an STI V5 'style' spoiler like loads of sites and even this one, surly you are using the 'subaru' and the 'subaru technica international' name and trying to promote your product.....????
Im sure prodrive would not sue over one word in the tittle of a thread stateing prodrive 'replica' spoiler, if it went to court im sure they would want to see the spoiler in question and see if it had prodrive plastered on it which it cleary didnt...!!!!!!!
I just wonder if its because, if people start buying these spoilers it takes sales away from the scoobynet shop.....?????
Just my 2p worth..!
Dan
[Edited by dhorwich - 11/2/2002 10:35:55 AM]
02 November 2002, 11:12 AM
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I haven't seen the items you mentioned, but your original post clearly implied the the Prodrive replicas were marketed as such. If that's not the case, then there's no reason to remove it. However, the fact that you've described it as such suggests it was implied.
It's all down to description. If you use a manufacturers name to describe a product then I would have thought that you were immediately stepping into a potential minefield. The problem is that manufacturers can always argue that in doing so, you are trading off their reputation, and can damage their profile with your 'inferior' product.
However, if you market something similar to an STi or Prodrive item, then it's a whole different matter.
Josh
It's all down to description. If you use a manufacturers name to describe a product then I would have thought that you were immediately stepping into a potential minefield. The problem is that manufacturers can always argue that in doing so, you are trading off their reputation, and can damage their profile with your 'inferior' product.
However, if you market something similar to an STi or Prodrive item, then it's a whole different matter.
Josh
02 November 2002, 11:21 AM
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here is the spoiler and i cant see prodrive wrote on it...??
http://www.scoobynet.co.uk/bbs/threa...hreadid=144143
Dan
http://www.scoobynet.co.uk/bbs/threa...hreadid=144143
Dan
02 November 2002, 11:29 AM
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Dan
I think that is different thread. The point made was that there is a difference between replica and fake. There are plenty of companies making replica parts - no one has a problem with that.
If the goods are passed off as something they are not - then that is different. The original thread in wanted was picked up by Prodrive as they said the company in question in the States did not have their permission to use their name or logo. Whether the company involved would have actually produced the spoiler with the Prodrive logo on the side, I cannot say.
We made a decision to delete the thread in question which the original poster agreed with and understood. There is nothing more to it than that.
Chris
I think that is different thread. The point made was that there is a difference between replica and fake. There are plenty of companies making replica parts - no one has a problem with that.
If the goods are passed off as something they are not - then that is different. The original thread in wanted was picked up by Prodrive as they said the company in question in the States did not have their permission to use their name or logo. Whether the company involved would have actually produced the spoiler with the Prodrive logo on the side, I cannot say.
We made a decision to delete the thread in question which the original poster agreed with and understood. There is nothing more to it than that.
Chris
02 November 2002, 11:52 AM
#13
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The "Prodrive" spoiler issue merely prompted my query.
There are items for sale in the shop purporting to be STi items. Are they? STi is a company like Prodrive; do they not have the same rights to copyright?
There are items for sale in the shop purporting to be STi items. Are they? STi is a company like Prodrive; do they not have the same rights to copyright?
02 November 2002, 12:12 PM
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Um ozzy, why don't you try codding a linux based windows system and call it Window XP replica complete with all the logo and everything. You'll soon find out whether its a replica or a fraudulant thing..
02 November 2002, 12:22 PM
#16
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Katana,
You miss the point. A fake is a copy or replica that is misleading or fraudulant. The point being that if you copy the spoiler, then pass it off as the original, then that is fraudulant.
If I did re-write Windows using Linux and copy the logos, then that would be a copyright issue. If I simpy copied the CD, manuals and the box it was shipped in, then that would be a fake as I'm passing it off as the original.
The real issue seems to be using the Prodrive name, which is simply a copyright infringement. Just like Scoobyshop advertising window strips or logos for the side of the car with manufacturers logos - is it not ???
Anyway, I was happy for the post to get pulled, but like Simon I'm a bit confused. If SN stands against all copyright, fakes and replicas then it has to do it with everything, surely?
Stefan
[Edited by ozzy - 11/2/2002 12:25:55 PM]
You miss the point. A fake is a copy or replica that is misleading or fraudulant. The point being that if you copy the spoiler, then pass it off as the original, then that is fraudulant.
If I did re-write Windows using Linux and copy the logos, then that would be a copyright issue. If I simpy copied the CD, manuals and the box it was shipped in, then that would be a fake as I'm passing it off as the original.
The real issue seems to be using the Prodrive name, which is simply a copyright infringement. Just like Scoobyshop advertising window strips or logos for the side of the car with manufacturers logos - is it not ???
Anyway, I was happy for the post to get pulled, but like Simon I'm a bit confused. If SN stands against all copyright, fakes and replicas then it has to do it with everything, surely?
Stefan
[Edited by ozzy - 11/2/2002 12:25:55 PM]
02 November 2002, 12:32 PM
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I think it boils down to the 'great' prodrive getting involved...
Im sure if STI wanted to waste there time they could do something, but in reality all these STI stickers on peoples cars/windscreens e.t.c are free advertising....
Dan
getting involved...Im sure if STI wanted to waste there time they could do something, but in reality all these STI stickers on peoples cars/windscreens e.t.c are free advertising....
Dan
02 November 2002, 12:39 PM
#18
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Yeah, you're probably right.
Would it be the same to copy the spoiler without the logo, then get a nice Prodrive logo from the SN shop and stick them on both sides ??
Stefan
Would it be the same to copy the spoiler without the logo, then get a nice Prodrive logo from the SN shop and stick them on both sides ??
Stefan
02 November 2002, 02:03 PM
#20
Hi everyone.
OK to clear some things up.
the original Prodrive spoiler thread set up by Money was just between me and him as he told me he had a spoiler coming from the states which was a PRODRIVE REPLICA spoiler.
other people noticed this thread and soon we had over 20 members interested in the spoiler which I thiought was an ideal GROUP BUY.
it turned out that Moneys spoiler did not have the Prodrive logo embossed on the sides or the brake light.
Therefore I looked around to see if anyone else could do a PRODRIVE REPLICA SPOILER with brake light and logo.
I found one and notified all interested parties.
In no way did I ever suggest this was a genuine Prodrive spoiler. all parties understand it is a REPLICA.
It seems the whole controvesy lies around the fact that the spoiler has the 'Prodrive' logo on it.
This is why SCOOBYNET took the action to remove the thread as they, quite rightly so, dont want to get involved in any sort of legal thing with prodrive.
PLEASE NOTE: I can understand this and have no problem with the removal of it.
However, I can understand Prodrive getting narked if it was being sold as their GENUINE spoiler BUT IT'S NOT, its being sold as a REPLICA with the Prodrive logo on it.
what i find amazing is that the REPLICA is made from exactly the same material and uses the same brakelight as the GENUINE part, at just over a 1/2 the price (£315 compared £540.)
Yet the prodrive guy who comes on Scoobynet stated that if they could get it made cheaper they could bring the price down???
Now I cannot see any problem here, as stated above, it is being sold as a REPLICA part and the fact it has the logo on it is a good thing as it is free advertisement for Prodrive.
(or am I wrong?)
I hope this clears things up a bit and answers some questions.
OK to clear some things up.
the original Prodrive spoiler thread set up by Money was just between me and him as he told me he had a spoiler coming from the states which was a PRODRIVE REPLICA spoiler.
other people noticed this thread and soon we had over 20 members interested in the spoiler which I thiought was an ideal GROUP BUY.
it turned out that Moneys spoiler did not have the Prodrive logo embossed on the sides or the brake light.
Therefore I looked around to see if anyone else could do a PRODRIVE REPLICA SPOILER with brake light and logo.
I found one and notified all interested parties.
In no way did I ever suggest this was a genuine Prodrive spoiler. all parties understand it is a REPLICA.
It seems the whole controvesy lies around the fact that the spoiler has the 'Prodrive' logo on it.
This is why SCOOBYNET took the action to remove the thread as they, quite rightly so, dont want to get involved in any sort of legal thing with prodrive.
PLEASE NOTE: I can understand this and have no problem with the removal of it.
However, I can understand Prodrive getting narked if it was being sold as their GENUINE spoiler BUT IT'S NOT, its being sold as a REPLICA with the Prodrive logo on it.
what i find amazing is that the REPLICA is made from exactly the same material and uses the same brakelight as the GENUINE part, at just over a 1/2 the price (£315 compared £540.)
Yet the prodrive guy who comes on Scoobynet stated that if they could get it made cheaper they could bring the price down???
Now I cannot see any problem here, as stated above, it is being sold as a REPLICA part and the fact it has the logo on it is a good thing as it is free advertisement for Prodrive.
(or am I wrong?)
I hope this clears things up a bit and answers some questions.
02 November 2002, 03:39 PM
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Thank you all for the replies. As the posts have shown it is a complicated issue. I think Prodrive's point in all of this is that their logo is a trademark image and therefore to use it, you must have the permission of the owner.
Prodrive, through Mike Wood, made it quite clear that no permission had been given. The fact that Mike had made the effort to reply to thread means they take it seriously (as any company would). We took the decision to remove the thread later on. With the benefit of hindsight we could have removed the post earlier.
If the spoiler in question was manufactured without the logo and sold as a replica, I can't see that anyone would have a problem with this.
What Prodrive charge for their parts is another matter. They will charge what the market will pay. In most areas, you pay for the privillege of having the 'premium' or 'superior' brand (perceived or otherwise). If people choose to buy them, then fine. If not, you can normally get a cheaper non branded alternative.
Chris
Prodrive, through Mike Wood, made it quite clear that no permission had been given. The fact that Mike had made the effort to reply to thread means they take it seriously (as any company would). We took the decision to remove the thread later on. With the benefit of hindsight we could have removed the post earlier.
If the spoiler in question was manufactured without the logo and sold as a replica, I can't see that anyone would have a problem with this.
What Prodrive charge for their parts is another matter. They will charge what the market will pay. In most areas, you pay for the privillege of having the 'premium' or 'superior' brand (perceived or otherwise). If people choose to buy them, then fine. If not, you can normally get a cheaper non branded alternative.
Chris
02 November 2002, 06:29 PM
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Out of curiosity..what bracket do the WRX - STI mudflaps being marketed on the forum fall into.
They are obviously not original but are exact copies of the genuine mudflaps and are being sold with the STI Logo are they not ?
They are obviously not original but are exact copies of the genuine mudflaps and are being sold with the STI Logo are they not ?
03 November 2002, 01:25 AM
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again it is most likely a trade mark issue.
Trade marks are geographical restrictions. If no one owns the trademark of sti in the uk, then no one is in a position to take action against people using sti.
It is possible that subaru do own these trademarks in the uk. Again something that could be checked if I could be bothered.
Persuing these things is very expenisve, and even when the plaintiff knows they will win, it is often not worth it if dealing with a tiny operation with out enough money to afford the damages.
Often a warning is all that is necessary, but you cannot make a threat without having a registered trade mark, and even then you have to word it carefully, or risk being actioned for making groundless threats.
Its all very complicated, but it keeps me in business.
Trade marks are geographical restrictions. If no one owns the trademark of sti in the uk, then no one is in a position to take action against people using sti.
It is possible that subaru do own these trademarks in the uk. Again something that could be checked if I could be bothered.
Persuing these things is very expenisve, and even when the plaintiff knows they will win, it is often not worth it if dealing with a tiny operation with out enough money to afford the damages.
Often a warning is all that is necessary, but you cannot make a threat without having a registered trade mark, and even then you have to word it carefully, or risk being actioned for making groundless threats.
Its all very complicated, but it keeps me in business.
03 November 2002, 01:31 AM
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Adam, you don't need a trade mark to persue a passing-off action or claim for damages. A trade mark registration just makes it easier. There would be copyright issues here as well.
Or is this a malicious falsehood 
Richard.
Or is this a malicious falsehood
Richard.
03 November 2002, 03:39 AM
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Yes, you have - and a very good one, too. Just pulling your leg, m8
Looking forward to your engine rebuild. Should be quite summat 
Best,
Richard.
Looking forward to your engine rebuild. Should be quite summat
Best,
Richard.
03 November 2002, 08:28 AM
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Thanks to Adam for replying (I hoped he would eventually ).
Adam knows far more about this than any of us - and it shows that with our limited knowledge we have to make a decision whether to let these things run or remove them.
We are not in a position to have a team of legal experts on call to check posts like this, so we have little choice but to remove them.
To protect Scoobynet we must be slightly cautious, which means we do risk upsetting some people sometimes. However, the alternative would be to land Simon in a vey awkward position and possibly having to fight legal action (extreme, but possible, Scoobynet has been threatened more than once with it). A potentially expensive outcome, which would be likely to threaten the existance of Scoobynet - regardless of who was to blame.
Chris
).Adam knows far more about this than any of us - and it shows that with our limited knowledge we have to make a decision whether to let these things run or remove them.
We are not in a position to have a team of legal experts on call to check posts like this, so we have little choice but to remove them.
To protect Scoobynet we must be slightly cautious, which means we do risk upsetting some people sometimes. However, the alternative would be to land Simon in a vey awkward position and possibly having to fight legal action (extreme, but possible, Scoobynet has been threatened more than once with it). A potentially expensive outcome, which would be likely to threaten the existance of Scoobynet - regardless of who was to blame.
Chris