IP mapping?

So I’m watching a clever YouTube which Josh Gans points out has been annoyingly marred by a running stream of “subscript” advertisements.

On of the ads is for IP Mapping which seems like a clever description of patent searching. No doubt, I’m being a bit perfunctory here. Anyone know what I’m missing?

Apologies

Sorry about the break in transmission – some glitch in a database somewhere meant that only files up to 13 August were showing up.

Thanks to Jacques, everything seems to be back on an even keel now.

Seasons Greetings

The sand, the sea and (hopefully) the sun are calling.

IPwars is swapping the quill and magnifying glasses for sun block and Stingose.

Thankyou for visiting during 2008.  I hope you found something of interest.

Wishing you the Compliments of the Season!

Normal transmission should resume late January.

Vale Sir Hugh Laddie

There are many tributes throughout the blawgosphere marking the passing of Sir Hugh Laddie.

One of the best places to get a sense of Sir Hugh’s place in the IP world is the thoughtful overview provided by Bill Patry.

At a more mundane level, should you find yourself involved with an ‘Anton Piller’ bear in mind that Sir Hugh was there before you.

3 helpful iPhone apps for Australians

AroundMe

Metro Public Transport (Melbourne, Sydney and Perth) a free and paid version for Melbourne

Pocket Weather AU (like the great widget, but you have to pay)

Another 5 another lawyer likes.

The three I mention can be (are) Australian specific information services.  These work well because they relate to location specific things which the iPhone can retrieve.  Most of the other apps I find useful really need to sync with my computer; first, because it’s easier to enter the data on the computer and, secondly, because you don’t want to be entering things twice or three times or ….

Unfortunately, the way the iPhone is designed to work means that most of these apps – sugarsync, Evernote etc. – work “in the cloud” (Our ABC here). They must be stored on the internet or pass through an internet host. That has potential security and privacy concerns (assuming the technology works).

That feeds into a different concern raised by Jonathan Zittrain in The Future of the Internet and How to Stop it. We are being present with a range of proprietary offerings that are acting a bit like gated communities in which you only get what the provider is willing to offer. Prof. Zittrain contrasts that to his view of the way the Web has worked till now: someone provided the underlying technology and hosts of people came along with hosts of customised solutions that you could choose to use.

Android? Well, it seems potentially to be much more open than the iPhone. Hopefully, it will force a lot more open-ness through competition but, of course, Google has its own “cloud”.

Upgrading

You may have noticed that IPwars has been more than usually missing.

This is mainly because the software for IPwars has become obsolete and I am attempting (so far, rather unsuccessfully) to transition to new software.

Please bear with me while this gets sorted out.

Barefoot in the drink

E & J Gallo failed in its action against Lion Nathan alleging that BAREFOOT RADLER for beer infringed Gallo’s registration of BAREFOOT for wine. Worse news for Gallo, its trade mark was ordered to be removed for non-use …

The case is a relatively rare consideration by the Court of “goods of the same description” and even rarer consideration of the s 120(2) defence. It also repays close attention to why the Gallo’s trade mark was removed for non-use even though there had been sales of the product in Australia in the relevant period. In this post, I am only going to look briefly at the infringement question.

On the infringement issue, Flick J found that the mark BAREFOOT RADLER was deceptively similar to Gallo’s trade mark, but beer and wine were not goods of the same description. The claim under s 120(2) failed as there was no likelihood of confusion in the circumstances.

The deceptive similarity analysis is, with respect, fairly conventional. The main twist was whether or not Lion Nathan’s trade mark was BAREFOOT RADLER or BAREFOOT RADLER with footprint device.

One might have thought that Gallo had to show what mark Lion Nathan was in fact using, but Lion Nathan was precluded from relying on its composite mark because its pleadings did not properly disclose its contention that the trade mark in use was the composite mark, not just the word mark itself. The point had the potential to be significant as Flick J would not have found the composite mark deceptively similar to Gallo’s trade mark.

(As an aside, one wonders what fun there could have been if the evidence showed that, in addition to the composite mark, Lion Nathan also used the word mark as a trade mark. One often sees composite marks or logos displayed prominently on materials, but just the words being used in a trade mark sense in the advertising and promotional text.)

Flick J analysed the issue of goods of the same description very carefully. His Honour acknowledge that there were factors which could lead to a finding that beer and wine were goods of the same description [74]:

(i) both products were alcoholic beverages for human consumption;

(ii) both products were generally distributed by the same major wholesalers;

(iii) Barefoot Radler beer was intended to appeal to both “core” and “marginal” beer drinkers and, in the latter category, particularly intended to appeal to wine drinkers;

(iv) both brands were intended primarily for consumption in the summer months; and

(v) wine and beer were both frequently sold by the same retailers.

Looked at from a business point of view, however, these factors were overriden by other considerations:

(a) they were made in different manufacturies, using different processes and ingredients – water, a fermentable source such as starch (often malting barley) and yeast and a flavouring such as hops for beer; crushed grapes and yeast for wine [77 – 78]

(b) the manner in which beer and wine were sold may be different [80 – 82]: in restaurants, beer was sold by strength and brand and, apparently, beer drinkers usually limited themselves to 3 or 4 brands; wine was sold by reference to the wine list

in retail outlets, wine was usually sold be categories further divided into wine type and country of origin, with 80% of product being on the shelves; the main selling area for beer was the coolroom, in which beer accounted for 80% of products, and it was not usually displayed in any particular order or categories;

apparently, beer producers also rely heavily on brand signage.

(c) the way in which the products were consumed was different [83] – beer is apparently consumed for its thirst quenching properties, but wines and spirits are for sipping; beer also has an important role in, er, male bonding

(d) although both Lion Nathan and Foster’s both produced both wine and beer, wine and beer production, marketing and sales were separate from each other [84 – 85]. This included evidence that Foster’s had originally tried marketing both beer and wine through the same sales force, but had subsequently resorted to separate, specialised sales forces. The other main brewers in Australia did not carry wine.

The fact that Lion Nathan deliberately sought to entice wine drinkers with its Barefoot Radler product did not lead to any different conclusion as beer and wines are not commonly used as substitutes or alternatives.

Flick J also found that Lion Nathan had successfully established the defence under s 120(2) [94 – 95] having regard to the way both products were displayed for sale.

E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934, final orders [2008] FCA 1005.

Product placement

You know how James Bond stopped driving Aston Martins (notwithstanding Top Gear) for BMWs and always wears an Omega watch and the computer monitors on everyone’s desks are …

Well, Marty Schwimmer has a link on the US FCC’s request for comments on its proposed Sponsorship Identification Rules and Embedded Advertising.

According to one of the Commissioners:

The fundamental premise of our sponsorship identification rules is that the American public is entitled to know who is trying to persuade them. That premise applies to a wide range of conduct, from payola to political advertising to product placement. This rulemaking is intended to determine whether our sponsorship identification rules need updating in order to provide adequate notice of certain types of “embedded” advertising practices that have proliferated in recent years.

According to another:

“Reality TV” should mean informing viewers about who is secretly pitching to them in the TV shows they are watching. The true reality is that news and entertainment alike are practically being turned into undisclosed commercials. Many current practices fly in the face of viewers’ legal right to know who is pitching to them.

What would they think if they watched commercial TV downUnder?

Fair use and online video

2 Washington DC professors (with an impressive line up of contributors) have released a Code of Best Practices in Fair Use for Online Video …

How they describe their Code:

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

WHAT THIS ISN’T

This code of best practices does not tell you the limits of fair use rights.

It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can.

It’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu.

It’s not a guide to using material that someone wants to license but cannot trace back to an owner-the so-called “orphan works” problem. However, orphan works are also eligible for fair use consideration, according to the principles detailed below.

3 things:

The Code is not the law, even in the USA; it is trying to identify best practices.

The Code has attracted the ire of some commentators and Prof. Patry has a go at setting at least one of them to rights here.

Australia, of course, doesn’t have fair use; we have fair dealing and various other defences and no first amendment. So it won’t all follow. Nonetheless, you may find some useful ideas and things to think about here.

<br>Groooaaannnn …<br>

The Australian Copyright Council reports that the recent Council of Australian Governments (COAG) meeting has identified the problem of parallel importation of books as a priority area for reform and referred the issue to the Productivity Commission …

Presumably, this means that the Productivity Commission is supposed to come up with reasons why the current convoluted stepped regime (somebody somewhere must have written a book on how it works!) should be repealed and replaced with a regime permitting parallel imports of any book at any time as applies for sound recordings, computer programs, “accessories”, electronic literary or music items (in short, just about anything except feature films and books).

It will be “interesting” to see the competition analysis given that anyone who wants to buy a book can jump on the internet and order it from overseas anyway. (My personal favourite is www.addall.com.)

That said, it would not be hard to come up with a conclusion that a legislative regime that has six (yes! count them) – seven if you count the regime applying for copyright materials not covered by the exceptions – different parallel import regimes doesn’t make sense.

Of course, the other schemes in the Act creating open markets have been a resounding success as the onus of proving that the things imported are “parallel” (or gray) rather than counterfeit (or black?) invariably falls on the importer.