20 September 2011

Why You Cannot Trademark Symbols Of Despotism

Image: Soviet coat of arms on Wikimedia Commons

The image above represents nothing less than the coat of arms of the Union of Soviet Socialist Republics or the Soviet Union as this no longer existing state is known to large parts of the public.

The image above also shows what the British Virgin Islands based company called Couture Tech Ltd attempted to register as a

Community Trade Mark

with the Office for Harmonization in the Internal Market (OHIM).

Funnily, the registration sought to cover an amazingly broad spectrum of goods and services detailed by the classes 3, 14, 18, 23, 26 and 43 of the Nice Classification Agreement.

Not surprisingly to me OHIM

refused to grant registration

because it found that the mark applied for was contrary to public policy or to accepted principles of morality within the meaning of Article 7(1)(f) read with Article 7(2) of Regulation No 40/94. For the sake of clarity, it should be noted that Regulation 40/94 has been codified by Regulation No 207/2009, which is also referred to as the “CTMR”.

Couture Tech Ltd contested this finding before the Board of Appeal, but suffered another setback as in its dismissal the Board held that

symbols connected with the former USSR would be seen as contrary to public policy and to accepted principles of morality by a substantial section of the relevant public, namely the general public living in the part of the European Union which had been subject to the Soviet regime, at least as far as Hungary and Latvia were concerned.

Quoting the Hungarian Criminal Code, the Board of Appeal even stressed that the signs hammer and sickle (however together with other politically burdened insignia) represented

symbols of despotism

and hence signs which are likely to be perceived by the relevant public as being contrary to public policy or to accepted principles of morality.

What a statement, huh?

Couture Tech Ltd, obviously not willing to accept another defeat, asked the General Court to annul the decision of the Board of Appeal based on two pleas.

First, Couture Tech Ltd asserted that the Board did err in interpreting Articles 7(1)(f) and (2) of the CTMR.
Second – and since OHIM had already registered Couture’s mark No 3958154, which related to the same sign, i. e. the Soviet coat of arms – OHIM had lured Couture to rely upon the registration of the mark applied for. Consequently, OHIM did breach the principles of the protection of legitimate expectations and legal certainty.

Today the General Court issued its decision in which it dismisses all of Couture’s assertions.

Although the General Court  nearly neglects the second plea of Couture Tech Ltd, I am of the opinion that it sends a

very strong signal

not only to the brand owners and intellectual property practitioners, but also to the politicians throughout the European Union.

According to that signal, the communist symbols, especially those related to the Soviet regime represent symbols of despotism, the trivialisation of which could not be reconciled with the public policy and accepted principles of morality in Europe.

Consequently, such symbols must not be trademarked.

25 August 2011

Why Banning Rioters From Facebook Is Wrong

Image: Courtesy to GossipHat

I believe you did already hear or read about David Cameron’s chimeric ideas to ban the access of the UK nationals with antisocial behaviour, also known as rioters, to Facebook.

Why chimeric?

Well, first of all, such a ban would constitute a serious and disproportionate interference with subjects’ right to privacy and free expression  and, second, the ban would prompt them to seek alternatives to the most popular social network.

In fact, Prime Minister’s proposal did not surprise me in terms of the potential human rights violations.

Such violations can be countered quite successfully and it is very, very likely that the British government

would end up in a fiasco

should it opt for the ban.

I rather wonder why the government of the appealing David Cameron would voluntarily give up its convenient

opportunity to monitor

those against whom it claims to be fighting?

It is common knowledge that Facebook cooperates with the law enforcement authorities, and the same is valid also with respect to Google and – presumably – to its newly launched social network Google + in particular.

But what would happen if the rioters focused on alternatives which are more difficult to monitor and hence less convenient to control?

Could that be the plan of the young conservative politician?

Well, that sounds like a

real conspiracy

and I can hardly imagine it.

It is rather a political shot in the dark, the implementation of which is likely to intensify the problem instead of solving it.

Your thoughts?

6 August 2011

Sanford Wallace Cannot Let Go

Image: spam by Vince_Lamb on Flickr
spam

Who remembers Sanford Wallace?

Exactly, this is the spammer sued by Facebook, which won a $711 million civil judgement against him. But that was not all – owing to a court order Wallace was also under the obligation to forbear from accessing Facebook’s social network.

However, judging from that press release of the United States Department of Justice

Wallace’s abstinence

did not last long.

Upon a two-year investigation by the FBI, he is currently facing criminal charges for having disobeyed the order of the court as he had created a Facebook profile entitled “David Sinful-Saturdays Fredericks” and had maintained it on a regular basis.

Those activities, in the view of the prosecution, constitute acts of

Fraud

in connection with electronic mail and computers pursuant to 18 U.S.C. §§ 1030 and 1037.

The charges are likely to result in the perennial imprisonment of Wallace.

I do not understand why he had to do this.
Was he maybe competing for the King’s Crown?

2 August 2011

Goo-Goo Eyes At Apple

Photo courtesy to Alldroid


Gooapple
: design right or trade mark infringement?

30 July 2011

Will Turkey Beat China In Internet Censorship?

Image: YouTube in Turkey by Mohamed Nanabhay on Flickr
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I must say that during the last year – year and a half I have come across numerous mentions about the Internet censorship faced by users in Turkey, but they somehow failed to attract my attention.

Opening Google Reader this morning, however, brought my sight to an analysis of the Turkish lawyer Omer Bayraktar, in which he outlined the expected

Comprehensive Filtering

of the Internet in Turkey.

Bayraktar’s  material bears the headline Turkey: Pandora’s Box will be opened shortly… and provides its readers with some intriguing information. Bulgarian readers might be interested to read the blog post I composed in my other blog.

For instance, the Turkish Communications Regulatory Authority (Bilgi Teknolojileri ve Iletisim Kurumu, BTK), has mandated that as of the 22 August 2011 Turkish users must not surf on the Internet, unless they install at least one of four specifically developed filtering technologies.

Any non-compliance with this legislative measure or circumvention of the filters will expose their actors to criminal liability and charges.

One needs not be a zealot in defending

Human Rights

to realise that the measure so introduced will directly and disproportionately limit the freedom of expression, information and privacy of the Turkish users on the Internet.

Still, Turkey is a member of the Council of Europe and as such is subject to the jurisdiction of the European Court of Human Rights (ECtHR).

The partial Internet censorship which Turkey had maintained until now did not remain unnoticed and resulted in that the Turkish nationals Ahmet Yildirim and Yaman Akdeniz brought actions before the Court in Strasbourg.
The outcome expected in the rulings becomes increasingly relevant in light of the upcoming total control.

But the ECtHR does not represent the only venue where Turkey should fear that its image might be tarnished: the filtering legislation will very likely have repercussions also upon Turkey’s attempts to accede to the European Union.

I guess, Merkel and Sarkozy will hardly fail to take the chance to declare the incompatibility of this legislative step with common European values

Conclusion

If Turkey sustains its planned filtering measure, it will join the circle of authoritarian states and probably surpass China’s Golden Shield Project in terms of Internet censorship.

By the way, what would be your reaction if your government introduced such censorship in your country?

25 July 2011

Non Disclosure Agreement

Ssh! It's a secret!

How likely is it that the below “confidential information” definition is the most extensive and exhaustive one?

Read and enjoy -)!

“Confidential Information” means all nonpublic, technical and non-technical confidential and/or proprietary information of the Disclosing Party in whatever form transmitted to the Receiving Party, including, without limitation, all information concerning the Disclosing Party’s past, present, and future products and services including, without limitation, information concerning the Disclosing Party’s business, marketing and product development plans, research, experimental work, design details and specifications, engineering,  customer lists and records, business records, financial statements and information, procurement requirements, technical information, pricing, discount and cost information, manufacturing, investors, employees, business and contractual relationships and terms and conditions, correspondence, business forecasts, sales, merchandising, information the Disclosing Party provides regarding third parties and other proprietary information, including without limitation all data, technology, research, inventions, tools, prototypes, patent and patent applications,  intellectual property, trade secrets, know-how, formulations, files, software programs, software source documents, compositions, works of authorship, mask works, ideas, samples, media techniques, sketches, drawings, models, apparatuses, equipment, algorithms, processes, methods and the like, and all information and formulae relating to the Disclosing Party’s past, present and future research, development and business activities of a nature generally considered confidential or proprietary in the business world.

6 July 2011

Wherever You May Roam

Image by Kai Hendry on Flickr
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Who does not own a mobile device nowadays?

Be it a smartphone or a tablet, it is a great convenience to be steadily and ubiquitously online owing to a  mobile network access.
When used abroad, however, the great convenience may easily turn into a great disaster: even the best trip or holiday would be destroyed by a

Shocking Bill

waiting for you in the postbox.

But what would you say if you had to pay

– no more than 24 cents per minute to make a call;
– a maximum of 10 cents per minute to receive a call;
– a maximum of 10 cents to send a text message (SMS) and,
– a maximum of 50 cents per Megabyte (MB) to download data or browse the Internet whilst traveling abroad (charged per Kilobyte used) and

on the top of that your monthly bill when traveling abroad would be limited to
€ 50 (unless you have expressly opted for otherwise) to protect you from a “bill shock”?

That would be

Great News

would it not?

Well, that is today’s news from Brussels: the European Commission has proposed a regulation, which in the view of Commissioner Neelie Kroes would

also immediately bring down prices for data roaming, where operators currently enjoy outrageous profit margins.

Once adopted by the European Council and European Parliament, the regulation is expected to enter into force as of 1 July 2012.

The proposed regulation aims at meeting the objectives set in the Digital Agenda for Europe pursuant to which differences between roaming and national telecoms tariffs should

Approach Zero By 2015

Besides, the European Commission expects that the regulatory instrument creates a market for telecommunications operators specialised in providing roaming services against competitive prices.

I somehow feel reminded of Metallica’s

But I’ll take my time anywhere
Free to speak my mind anywhere
And I’ll redefine anywhere
Anywhere I roam
Where I lay my head is home

What is on your mind?

4 July 2011

Star Wars Coloured Green

Image by JD Hancock on Flickr

3524876304_3aa13f3d05_z

We all do care for the environment, do we not?
Not surprisingly, Greenpeace cares even more.

The green multi cares so much that some weeks ago it started attacking Volkswagen over latter’s environmental credentials.
Using a Star Wars influenced get-up, the environmental activists accused the Wolfsburg company to be on the dark side and to abuse the force

to lobby against key environmental laws despite making claims that it wants to be the most eco-friendly car automaker in the world.

The funny thing is that Greenpeace expressed its criticism by uploading a video on its channel on YouTube. The video is a heavy parody of a previous Star Wars based advertisement of VW.
Shortly thereafter, however, not only did the parodying video disappear from YouTube, but the Google affiliate quickly shut up the entire Greenpeace channel.

Whose dark force should one suspect behind such a Sith-esque act?
The one of VW?

Believe it or not, but it was

Lucasfilm Who Rushed To Aid

the German car manufacturer in their conflict with Greenpeace.

Reportedly, Lucasfilm has claimed the infringement of their copyright by Greenpeace and has served YouTube with (probably) a DMCA takedown notice.

I was curious why YouTube elected to comply with Lucasfilm’s request since the parody of Greenpeace falls clearly under a

Fair Use

defence and the broadcast-it-yourself platform, in similar instances, has fought legal proceedings against right holders in order to protect both, its users and its business model.

A closer look into the DMCA drew my attention to its Section 512 (g) (1) that gives Greenpeace the opportunity to respond to the notice and takedown by filing a

Counter Notification

It turns out that, if Greenpeace serves YouTube with a counter notification complying with statutory requirements, including a statement under penalty of perjury that the parodying video was removed or disabled through mistake or misidentification, then unless Lucasfilm files an action seeking a court order against Greenpeace, YouTube will have to

Put The Video Back

up within 10-14 business days after receiving the counter notification.

See whether my prediction will hold true.

1 July 2011

ACTA: Why The EU Commission Endorses It And Why You Should Not

Image by Martin Krolikowski on Flickr

6858377005_738233054e_z

Yesterday I got aware that the European Union Commission had proposed to the Council of the European Union the signing and the adoption of the Anti-Counterfeiting Trade Agreement also known as ACTA.

The ACTA negotiations were launched on 3 June 2008 and after 11 rounds the agreement between the European Union (as an entity of its own), the Member States of the EU, Australia, Canada, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the USA was concluded on 15 November 2010.

In the following I will outline the main topics of Commission’s proposal and make some remarks why ACTA is in fact detrimental to nowadays’ society and why we all as individuals should oppose it.

ACTA Is Necessary

The Commission suggests that the signing and adoption of ACTA is a necessary step in order to effectively combat the infringement of intellectual property rights.
In its attempt to persuade the public opinion, the EU Commission takes the view that

ACTA includes state-of-the-art provisions on the enforcement of IPR, including provisions on civil, criminal, border and digital environment enforcement measures, robust cooperation mechanisms among ACTA Parties to assist in their enforcement efforts, and the establishment of best practices for effective IPR enforcement.

I must say that I can hardly find a topic that is not yet covered by the current legislation of either the EU or its member states.
Could the criminal enforcement be the missing point?
This might prove true, since the Commission already lamented the absence of harmonized protection of IPR through criminal law in the staff working document to its report on the application of IPRED.
While the Commission acknowledges that almost all member states provide for criminal measures to protect IPR, the national definitions and level of penalties would vary.

Nevertheless, ACTA does not provides for a harmonization either and this fact pretty much destroys the argument of its necessity.

ACTA Was Negotiated In Transparency

The Commission claims that

The EU Member States were kept informed of the negotiations orally and in writing via the Council’s Trade Policy Committee. The European Parliament has also been kept regularly informed on developments via its Committee on International Trade (INTA) and by Commissioner De Gucht.

The truth is that the negotiations were marked by the security through obscurity approach of their participants. It was the public interest, widely expressed on the Internet, that broke the silence and provoked a discussion in the European Parliament.

By the way, have you asked yourself why had an issue of such importance been kept under secrecy?

ACTA Does Not Modify The EU Acquis

The Commission stresses that

it has never been the intention, as regards the negotiation of ACTA to modify the EU acquis or to harmonise EU legislation as regards criminal enforcement of intellectual property rights.
For this reason, the Commission proposes that ACTA be signed and concluded both by the EU and by all the Member States.

Hmm, say what?
We all know that intellectual property law has become part of the acquis as of the 6th enlargement of the European Union.
If all member states to the EU together with the EU as a supranational organisation, were to sign ACTA, they would have to adopt the criminal enforcement measures contained therein.
This would not only be a clear extension of the EU acquis, worse – this extension would be brought in through the backdoor!

ACTA Is A Balanced Agreement

Maybe the strongest argument of the Commission is that

ACTA is a balanced agreement, because it fully respects the rights of citizens and the concerns of important stakeholders such as consumers, internet providers and partners in developing countries.

Again, this is simply not true.

As a matter of balance between right holders’ limited monopoly over their works and society’s interest to access these works, EU member states’ laws provide for exceptions such as copying for private and not-for profit purposes.
Not only fails ACTA to reaffirm these exceptions, but it even dilutes them by providing for a loose definition of a commercial scale.

ACTA’s Article 23 (1) reads:

For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

This seems to be very far from European Parliament’s position on the then discussed IPRED2:

“infringements on a commercial scale” means any infringement of an intellectual property right committed to obtain a commercial advantage;
this excludes acts carried out by private users for personal and not-for-profit purposes;

Equally important and by means of an example, La Quadrature Du Net demonstrates how ACTA might destroy the balance and endanger Internet users’ fundamental human rights by allowing right holders to obtain said users’ private data from Internet service providers, without a decision of a competent court.

Conclusion

The bad news is that ACTA will very likely be signed and adopted by either, the supranational EU and each if its members states.
This is very pity since ACTA was conceived in the sin of secrecy,  is likely to destroy the anyway fragile balance of interests and the necessity of its existence is open to serious debates.

The good news, however, is that ACTA’s adoption into national law is subject to procedures you as an individual can influence.
It is up to you to raise your voice and oppose it!

24 June 2011

Net Neutrality: On The Legislation Path In The Netherlands

Image by Alias 0591 on Flickr

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Those interested in telecommunications regulation and, particularly, in questions related to net neutrality have already heard it – the Netherlands has become the first country in Europe to introduce the concept of network neutrality into its national law.

Has it really?

Well, last week Kees Verhoeven from Democrats 66 (D66), Martijn van Dam from the Labour Party (PvdA), Sharon Gesthuizen from the Socialist party (SP) and Bruno Braakhuis from the GreenLeft (GroenLinks)

Lodged A Bill

to enshrine net neutrality with the House of Representatives of the Netherlands (the Second Chamber of the Dutch Parliament). Here is a link to the original document (in Dutch) and a fair translation of it in English.

According to Daphne van der Kroft from the Dutch civil rights platform Bits of Freedom

The Second Chamber (parliament) has accepted the bill with an impressively broad majority. Now the bill will go to the senate before entering into force. Because of the majority in parliament, we expect the Senate to pass it too. But we’ll have to wait ’till the end of the year to be sure.

That, to be precise, somehow invalidates the widely celebrated media headlines of the “Dutch enactment” of net neutrality, but – as Daphne writes – the chances, for it to happen, are good.
We are likely to have the final result in a year or so.

Now let us have a closer look at the bill!

Systematically, the applicants have chosen the section

End Users Interests

which is dealt with in Article 7 of the Telecommunications Act to introduce the net neutrality bill.

The bill basically provides that ISP may hinder or slow down end users’ traffic only in the very limited cases described in Article 7.4a (1) a. to d.

A further interesting provision is contained in Article 7.4a (2) – ISP must not shut off end users’ networks from the Internet, if such networks may be considered detrimental (e.g. botnets), unless ISP have given the operators of the affected networks the possibility to rectify the faults in those networks.

The most commented provision, however, is to be found in Article 7.4a (3) – the one that prevents ISP from charging prices that might bar end users from accessing specific services or applications on the Internet.
The applicants stress that this still allows for the charging of different prices for different types of bandwidth, but it nevertheless must not result in overpricing the use of, say, Skype so that no one would consider using it.

Article 7.4a (5) foresees the introduction of minimum requirements regarding the quality of service of public electronic communication services in order to safeguard the above provisions.

Finally and for the sake of completeness, Article 7.4a (4) reflects the recent trend in Dutch legislation to delegate the creation of detailed rules and regulations to administrative bodies.

Conclusion

In my view the beginning to a Europe wide legislation on net neutrality has been made.

Consumers from other member states will very likely create pressure upon their political leadership to follow the Dutch example.

How long could politicians refrain from adopting net neutrality legislation, if their voters start to sing

Somewhere over the rainbow

Way up high,

There’s a land that I heard of

Once in a lullaby.

What do you think?