25 January 2012

The Boss Of Passing Off

Two days ago I took this picture in the Serbian town of Subotica.

As you can see, a local entrepreneur is using that very famous brand to promote their own business, obviously consisting in the provision of food and drink.

The funny thing is that Hugo Boss has a trade mark registration in Serbia (albeit not for class 43) and that the Serbian Trade Mark Act protects well-known marks.

While I didn`t feel confused that the fashion brand might have something in common with a provincial restaurant in Serbia, I could not but perceive that the local entrepreneur has undertaken serious efforts to imitate both, the trade mark and the get-up of BOSS.

Thus, do you share my view that his use of the famous mark represents an unfair advantage and is detrimental to said mark`s distinctive character?

16 January 2012

Data Retention: EU Commission Should Facilitate Its Revocation

Image: Data Center by s_w_ellis on Flickr
Data Center

About a week ago a secret communication of the European Union Commission leaked to Quintessenz – an Austrian data protection and privacy advocacy group.

The communication basically acknowledges that both, the data retention directive (DRD) and the corresponding legislation in the member states to the EU have missed their target.

Best evidence

for the above may easily be obtained by the communication itself, however you need not read it in its entirety, since I have prepared a short summary for you:

– The EU Commission complains it has received qualitative response to its questions from only 11 out of 27 member states.
– There is next to no evidence on the value of data retention in terms of public security and criminal justice. It is unclear whether data requested would be available anyway without the retention obligation and Data Protection Authorities do not know what is being kept or deleted by operators.
– While law enforcement agencies would love to know who communicated with whom, when, where and how, they can hardly make it happen, since unclear definitions in the DRD have encouraged heterogeneous interpretations of the scope so the agents find it very difficult to get this data on time for their investigations.
– The so-called ‘serious crime are not defined at EU level and this leads to even more legal uncertainty – e.g. the entertainment industry calls upon the extension of DRD’s purpose to include copyright infringements, which may include illegal downloads / piracy.
– Telco operators complain about the considerable costs of compliance which are disproportionately high and hence discriminatory for smaller enterprises.

Putting it all together

it turns out that the DRD in its current form is useless because

– it does not solve legal uncertainties, but creates rather new ones;
– its scope is open to a debate and the EU Commission is keen to extend it (to cover also intellectual property infringements);
– it has failed in fulfilling its purpose – the harmonisation of the Internal Market.

Therefore,

the only reasonable step

of the EU Commission would be to immediately facilitate the revocation of the DRD!

Your thoughts?

8 December 2011

Apple’s iPad Trade Mark Bumped In China

Image: Logo de l’iPad by Rob Janoff via Wikimedia Commons
Apple ipad

As FT.com reports, a recent Chinese court ruling prevents Apple from using “its” iPad trade mark in China.

The reason therefor

seems to lie in a dispute between Apple and the Taiwanese company Proview Electronics.
Funnily, Proview is no stranger to Apple.

Somewhere between 2000 and 2004 the Taiwanese company had registered the trade mark iPad in the EU, China, Mexico, South Korea, Singapore, Indonesia, Thailand and Vietnam, but in 2006

decided  to assign

it to Apple by concluding a global agreement.

When Apple started to sell its iPad devices in mainland China, they did surprisingly encounter trade mark infringement proceedings brought by Proview Technology, the Chinese affiliate of Proview Electronics. The litigation value is said to amount to 1,6 billion USD, which is absolutely ridiculous if you bear in mind that the 2006 trade mark purchase counted some

shabby 55.000 USD

Some other reports derive Proview Technology’s combativeness from that fact that it has been insolvent for some time. The Chinese branch could thus have spotted an opportunity to cash in on Apple.

It is not Apple’s first dispute over the iPad trade mark.
The Cupertino company has so far been successful in regulating the cases arising from purported infringements and I have no doubts as to how they will end up with this particular situation.

24 November 2011

Scarlet vs SABAM: Do Neither Block, Nor Filter!

Image: …E O VENTO LEVOU (Gone With The Wind) by jonycunha on Flickr
...E O VENTO LEVOU (Gone With The Wind)

If you have landed here, I guess you are interested to find out more about today’s ruling of the Court of Justice of the European Union in the case Scarlet Extended vs Société belge des auteurs compositeurs et éditeurs (SABAM).

Some months ago I blogged on the opinion of the Advocate General Cruz Villalón, in which he asked the Court to declare that

the EU law precludes a national court from making an order that an ISP installs a system for filtering all electronic communications. 

I suggest that you read this older post of mine in order to be familiar with the background of the case.

So,

what did the Court decide?

The Court basically backed the Advocate General’s opinion and held that

1. while the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’),  it has no absolute protection;

2. national authorities and courts, when undertaking measures to protect copyright holders, must strike a fair balance between the protection of copyright and (i) the protection of the fundamental rights of individuals who are affected by such measures and (ii) the protection of the freedom to conduct a business enjoyed by ISPs such as Scarlet pursuant to Article 16 of the Charter;

3. the obligation of ISPs (such as Scarlet) to install and maintain a complicated, costly and permanent filtering system in the interests of copyright holders (such as SABAM) without any limitation in time, directed at all future infringements and intended to protect not only existing works, but also future works, would well infringe both, ISPs freedom to conduct a business and the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

Consequently, the Court held that an injunction ordering an ISP to filter its network traffic in the manner of para 3 above would represent a

serious infringement of EU law

and any national court, having issued such an injunction, would disrespect the legal framework of the European Union.

In my previous blogpost I predicted that Advocate General`s opinion, if followed by the Court, would create a bomb blast to sweep away the adversaries of fundamental human rights.

Did I promise you too much? I hope not.

Anyway, although the Court did in fact light a fuse that will eventually cause an explosion, it will not be a hurting one. It will rather provide ISPs such as Scarlet with the necessary shell to protect them in the performance of their most important services to the information society.

What does this mean in practical terms?

Basically and since the ruling heavily relies on Article 15 of the Directive 2000/31/EC, an ISP is protected only to the extent that it does not filter or modify its network`s traffic. Should the ISP – be it by means of an excessive compliance or an anticipatory self-regulation – begin to filter or block traffic, it would then lose the abovementioned privilege.

So, ISPs all over the EU – do simply enjoy the new dawn of the ruling and do neither block, nor filter, because otherwise you might be gone with the wind!

17 November 2011

Where Pizza Meets Haute Couture

Saw this one yesterday in downtown Sofia and could not resist to take a picture and blog on it.

Later I was somewhat surprised to find out that Escada had obtained a Bulgarian registration for their trade mark already in 2003.

Could there be room for a sound dilution claim based on Art 4 (3) of the trade mark directive?

29 October 2011

OpenFest 2011

Image: OpenFest website

Next weekend, on the 5 and 6 November 2011 I will be attending OpenFest 2011.

OpenFest has been organised annually since 2003 as  a conference dedicated to free culture and the free sharing of knowledge.
As such, the event mainly attracts visitors interested in or involved in the process of creation or marketing of free and open source software.

While the most visitors are expected to be from Bulgaria, OpenFest is designed to be an international event and its organisers have once again managed to invite a good amount of international speakers.

If you would you like to know to what extent

you may charge for free and/or open source software

then you should not miss the presentation in the form of a lightning talk, which I will be giving there.

In a strict accordance with the conference`s purpose, the admittance shall be free.

26 October 2011

Twitter Hit By A Software Patent

Image: I use Twitter wrong by topgold on Flickr
I use Twitter wrong

According to a report on the popular patent blog PatentlyO the Virginia based VS Technologies LLC commenced legal proceedings against Twitter earlier this year, claiming the infringement of its US Patent # 6,408,309.

The ‘309 patent was filed in 2000 and comprises basically

a method and system for creating an interactive virtual community of famous people, or those people who wish to attain the status of a famous person, in a field of endeavor, such as arts, accounting, animal rights, business, education, engineering, entertainment, financing, government affairs, human rights, legal, medical, philanthropy, politics, religion, research, science, sports, etc. The virtual community of the present invention is unique in that the members of the virtual community can update, modify or revise their individual profile, and interact with other members of the virtual community, as well as the non-members of the virtual community.

Interestingly, Justice Henry Coke Morgan Jr. denied Twitter’s motion for summary judgment, ruling that VS Technologies’ patented technology satisfies the machine-or-transformation test under Bilski.

Hear ye, hear ye.

A patent attorney led patent troll in an attempt to put the fear of God into the micro-blogging giant.
Sounds promising, does it not?

However, being a doubting Thomas would not be one of my firm principles, if I was convinced of the ‘309 patent’s novelty and non-obviousness. Hence, I do not expect that the patent in suit will stand serious judicial review.

Anyway, I will stay tuned in the matter and provide you with the updates.

19 October 2011

Patent Troll Goes On Sale

The Troll

Just read about the company Innovatio IP Ventures LLC, which was formed only some months ago in 2011 and, which is considered a patent troll, had purchased a number of patents that, according to Innovatio, encompass certain WiFi and WLAN technologies.

Innovatio are currently approaching small businesses such as coffee shops, hotel and restaurant chains that offer WiFi to their customers demanding the payment of royalties in the range of $ 2 000 – 5 000.

Does anyone still believe that software patents do not merit talking about?

Well, Innovatio have allegedly pledged not to pursue individuals using WiFi, but for how long since they are dealing from the bottom of the deck?

4 October 2011

HTC Joins Apple On The Road To Perdition

Image: 800px-HTC_Evo_4G by Anya1986 on Flickr
800px-HTC_Evo_4G

Do you remember Apple’s disrespect of their customers’ privacy?

It now turns out that the Taiwanese

HTC ain’t any better

in that respect.

Privacy International, whom I follow on Google Reader issued an article citing a very detailed report prepared by Artem Russakovski, Justin Case and Trevor Eckhart and made available on the Android Police website.

It turns out that HTC, in the absence of any corresponding consent, collect the personal data of their users and share that data with third parties.

Assuming that HTC have deployed the same business model also within the European Union, they have committed some

serious breaches

under the applicable data protection and privacy legislation here.

First, HTC should be aware of the fact that by processing personal data they act as a data controller and are therefore under the obligation to process the data fairly and lawfully and only for an explicit and legitimate purpose.

Second, when processing personal data, HTC must ensure that the buyers and users of their mobile devices, i.e. the data subjects have served HTC with an

explicit consent

to that data processing.

Not that HTC fail to obtain that explicit consent, they moreover mislead their users!

It is said to work like that: HTC ostensibly offer their users the option not to allow the collection and use of personal information, but even if the users select that option, HTC collects and processes the data anyway.

And third, by so doing, HTC have failed to prevent an

unwarranted intrusion

into the private sphere of their users.

I think that HTC, being a major competitor to Apple, should offer its customers a set of good privacy options, in order to create an advantage over the Cupertino company.

Instead, HTC seems to have opted to spy on and fool their customers thereby joining Apple on the road to perdition…

How about you?

Would you prefer one mobile device manufacturer over another, if it offers you a better privacy protection?

2 October 2011

Hóigh, Facebook, How Deeply Do You Care About Data Protection?

Image: Hanover Quay – Dublin Docklands by informatique on Flickr
Hanover Quay - Dublin Docklands

Hanover Quay, Dublin 2.

That is the address of Facebook’s European headquarter or, strictly legally, the business seat of the Facebook Ireland Limited.

The above is important

as owing to Section 18 of Facebook’s Terms of Use, users who are not residents of the USA and Canada have their agreement to use the social network with Facebook’s Irish subsidiary.

That means that if you have any

data protection issues

with the Zuckerberg-led company, you are entitled to approach the Irish Data Protection Commissioner.

The Austrian based data protection advocacy group Europe vs Facebook already started doing this.
They have identified several breaches and have undertaken a number of actions, thereby including complaints and access requests and, have covered each of them on their website.

Obviously

enforcing its powers

under Section 10 of the Data Protection Act, the Irish Data Protection Commissioner has started an investigation against Facebook.

I am curious what the outcome of the foregoing will be and will therefore monitor and provide for follow-ups.

By the way, how much do you care about what Facebook does with your data, but without your consent?