Posts Tagged ‘Twitter’

Lessig at e-G8 or Le civilised Internet vs gales of creative destruction

Thursday, June 2nd, 2011

While we’re having our dark mutterings about what might be in a “Convergence Review“, the Leaders of the Free World (or at least the Western Hemisphere) meeting at Deauville have declared:

5. We discussed new issues such as the Internet which are essential to our societies, economies and growth. For citizens, the Internet is a unique information and education tool, and thus helps to promote freedom, democracy and human rights. The Internet facilitates new forms of business and promotes efficiency, competitiveness, and economic growth. Governments, the private sector, users, and other stakeholders all have a role to play in creating an environment in which the Internet can flourish in a balanced manner. In Deauville in 2011, for the first time at Leaders’ level, we agreed, in the presence of some leaders of the Internet economy, on a number of key principles, including freedom, respect for privacy and intellectual property, multi-stakeholder governance, cyber-security, and protection from crime, that underpin a strong and flourishing Internet. The “e-G8″ event held in Paris on 24 and 25 May was a useful contribution to these debates.

[Slight digression: "new" issues? plus ça change?]

The real fun, however, was at the “e-G8″.

President Sarkozy, who was convening the meeting of the Leaders, had brought together all sorts of likely people

[such as Eric Schmidt, Mark Zuckerberg, Jeff Jarvis and Prof. Lessig]

and issued a clarion call for Le Civilised Internet.

It all started very well with M. le president declaiming:

You have changed the world. For me, you have changed the world, just as Columbus and Galileo did. You have changed the world, just as Newton and Edison did. You have changed the world with the imagination of inventors and the boldness of entrepreneurs.

However:

Also the States we represent need to make it known that the world you represent is not a parallel universe, free of legal and moral rules and more generally all the basis principles that govern society in democratic countries. Now that the Internet is an integral part of most people’s lives, it would be contradictory to exclude governments from this huge forum. Nobody could nor should forget that these governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to run the risk of democratic chaos and hence anarchy. To forget this would be to confuse populism with democracy of opinion. Juxtaposed individual wishes have never constituted the will of the people. A social contract cannot be drawn up by simply lumping together individual aspirations.

and

Do not allow the revolution you began to violate people’s fundamental right to privacy and to be fully autonomous. Complete transparency, which never allows a person to rest, will sooner or later come up against the very principle of individual freedom.

Let us not forget that behind an anonymous Internet user, there is a real citizen who is evolving in a society, a culture and an organized nation to which he belongs and with laws he must abide by.

Do not forget that the sincerity of your promise will be assessed in the commitment of your companies to contribute fairly to national ecosystems.

Do not allow the revolution you began to violate the basic right of children to lives that are protected from the moral turpitude of certain adults.

Do not allow the revolution you began to be a vehicle for maliciousness, unobstructed and unrestricted. Do not allow this revolution become an instrument in the hands of those who wish to jeopardize our security and in doing so, our freedom and our integrity.

You have allowed everyone, with the mere magic of the Web, to access all the cultural treasures of the world in a simple click. It would be something of a paradox if the Web contributed to draining them over time.

The immense cultural wealth that provides our civilizations with such beauty is a product of the creative forces of our artists, authors and thinkers. Basically, it is the product of all those who work on enchanting the world.

Yet these creative forces are fragile because when creative minds are deprived of the fruit of their talents, they are not just ruined, what’s worse, they lose their independence, they will be required to pawn their freedom.

Unfortunately, this didn’t meet with such a good press (at least in those parts of the (western) world that Napoleon didn’t conquer). For some of the adverse press: herehereherehere. Maybe, the President said something more specific in unscripted comments as the press and Prof. Lessig all react to suggestions that the rest of the world should be introducing the 3-strikes regime of the loi hadopi (France and France again and NZ) and, in another reverberation DownUnder, the rights of governments to censor what their citizens read or do on the internet.

Prof. Lessig was willing to concede that (for intellectual property rights) the question is not whether there should be copyright protection – “No-one serious denies this” - the question is how copyright should be protected in the age of the Internet. On this question, he sharply disagreed with M. le president. The President’s solutions were answers provided by incumbents. And such answers, Prof. Lessig says, should be treated with (too put it mildly) skepticism:

From the Hargreaves Report (UK)

Instead, Prof. Lessig pointed out, the future of the Internet is not:

  • Twitter
  • Facebook
  • Google
  • (he hopes) Rupert Murdoch,

the future of the Internet is not here (yet). We need to be careful lest the rules we put in place today (at the behest of incumbents) foreclose the emergence of new developments or lose sight of reality.

Now, of course, Prof. Lessig is engaging in polemical advocacy (just as Pres. Sarkozy was), but the point he raises is important and it is important that “we” get it right. One must accept that the State can lay down rules for its citizens’ use of the internet, just as it can lay down rules for all other aspects of its citizens’ lives. Apparently, this even applies in the USA, but in the UK may be not or may be. The question is: what rules (if any) should it lay down and whose views should it be listening to?

You can watch Prof. Lessig’s speech (which I recommend you do just long enough to admire the space age Stage that proves we really are living in the future) then switch over to the slideshow for the lesson (do persevere past section 1, the alcoholic(s)).

The link to the official (English translation of) the text of President Sarkozy’s speech.

For Hargreaves and some reaction.

The G8′s 2011 communique.

If you still need more on ‘creative destruction’ after watching Prof. Lessig, start here.

Lid dip: Peter Black at Freedom to Differ.

Affinage and A.S.P. 2

Friday, May 27th, 2011

For completeness, I should note that IHC UK has appealed Logan J’s decision earlier this month finding that it infringed IHC Australia’s registered trade mark for AFFINAGE. Summary here.

Interestingly, Logan J has granted a stay of his order to remove all references to A.S.P. from IHC UK’s Web site at www.affinage.com.

You will recall that IHC UK owns AFFINAGE outside Australia and had adopted A.S.P. at least partly to deal with the fact that it could no longer use “its” trade mark in Australia.

Logan J appears to have considered a stay pending the outcome of the appeal was in order as IHC UK:

  1. Had removed all references to Australia (including the drop down country box) from its web site at www.affinage.com;
  2. IHC UK was having some sort of global re-launch of A.S. P. in the UK soon, involving 150 or so distributors from around the world;
  3. His Honour accepted that the decision that the modified Web site infringed had been a “difficult one”; and
  4. IHC Australia had not sought damages and it was difficult to identify what damages might flow from the stay.

His Honour did not think that he needed to order a stay of 7 days of his orders relating to the removal of references to Australia from www.affinage.com. That stay had been sought out of an abundance of caution and IHC UK was generally trying to comply with the orders so it appeared a breach, if any, would have been inadvertent.

International Hair Cosmetics Group Pty Ltd v International Hair Cosmetics Limited (No 2) [2011] FCA 540

For the orders under appeal, see International Hair Cosmetics Group Pty Ltd v International Hair Cosmetics Limited [2011] FCA 339

Using a sign on the internet

Friday, April 15th, 2011

Logan J has granted injunctions against International Hair Care UK’s  use of AFFINAGE (and other trade marks) on its global website for (in effect) infringing International Hair Care Australia’s trade marks registered in Australia. The facts throw up the interesting question of what happens when 2 different people own the same trade mark in different countries and try to use it on the internet.

Facts

IHC UK is the owner of the registered trade mark AFFINAGE for hair care products in the UK and 20 other countries throughout the world, but not Australia.

In 1992, Mr Barry, the principal of IHC UK, set up IHC Australia with Mr Jolly. At that time, Mr Barry owned a majority of the shares.

IHC Australia applied for and registered AFFINAGE under the Australian trade marks act for hair care products.

In 2002, Mr Barry sold his then remaining shareholding in IHC Australia to Mr Jolly (and his wife) for $480,000. IHC Australia kept its registered trade marks and, under the terms of the sale, the parties divided up the global rights between themselves. IHC Australia got the rights to AFFINAGE in China, South-East Asia, Australia, New Zealand and the South-West and Western Pacific to the International Date Line; IHC UK had the rights to the rest of the world.

Sometime after this, Mr Barry or IHC UK incorporated a new Australian company, Affinage Salon Professional Pty Ltd, to sell hair care products under the brands A.S.P. and KITOKO.

In August 2010, the parties started legal action in Australia against each other. That litigation was compromised by a deed of settlement the terms of which, amongst other things, included Affinage Salon Professional agreeing to change its name so that it did not include AFFINAGE and IHC UK and its subsidiary undertaking:

not to use AFFINAGE … as a sign in connection with the importation, marketing, sale or manufacture in Australia of hair care products including hair colours and dyes.

In January this year, IHC Australia’s solicitor did a Google search and went to the link for IHC UK’s website at www.affinage.com. At that link, he was presented with a banner AFFINAGE and beneath it in smaller script SALON PROFESSIONAL. There was a “country box” with a drop down list of countries. When he selected “Australia”, he was taken to a page headed “ASP”. Under the “Profile tab” for Australia, there were the following passages:

In 1996 [IHC UK] conceived, created and lunched the premium hair care brand AFFINAGE. Originated as a line of hair colour, the AFFINAGE brand grew rapidly to include [reference to other types of product]… Now we are introducing our exciting new hair care brand, ASP, to the Australian and Asian markets. Having already signed distribution agreements with a number of companies we look forward to fantastic success in 2011.

….

Today our products are sold in over 50 countries – across Europe, Africa, the United States, South America and the Asia Pacific. Our brands are marketed globally by [IHC UK] and through it’s associated companies in the USA and Australia. Global distribution is achieved through a worldwide network of wholesalers and specialist distributors

A map of the world showed markers ASP Australia, ASP USA and identified the UK as Worldwide HQ. If the UK or the USA were chosen, the same information was displayed, but the landing pages were headed AFFINAGE and AFFINAGE, not ASP, was used to mark the countries.

IHC Australia re-commenced proceedings for breach of the undertakings.

Following service of the court documents (no other notice of complaint having been given), IHC UK amended its website.

The landing or home page now looked like:

IHC UK's modified home page

and Australia no longer appeared in the drop down box for countries under AFFINAGE, only under A.S.P.

Findings

Logan J found that the website in both its unmodified and modified form breached the undertaking in the deed of settlement and granted injunctions, amongst other things, requiring the A.S.P. component of IHC UK’s website to be removed from www.affinage.com. In contrast, the Facebook and Twitter links on the home page did not breach the undertakings.

On its true construction, the undertaking required IHC UK not to use AFFINAGE in Australia as a trade mark (at [61]). This required that IHC UK not use AFFINAGE as a trade mark in a way which targeted Australia.

IHC UK’s use targeted Australia

His Honour recognised that IHC UK was perfectly entitled to use its trade mark in, for example, the UK where it was the registered owner. The problem was to reconcile that entitlement and the global nature of the internet with IHC Australia’s territorial rights in Australia.

At [59]:

… the reconciliation to which I have just referred is achieved, in terms of the undertaking given in this case, by an approach that finds a use of the nominated words in connection with “marketing” in Australia if the words as so used are downloaded in Australia and there is evidence that the use was specifically intended to be made in, or directed or targeted at Australia.

Unlike the Ward & Brodie case, that targeting was effected by the country selection box: that was its whole purpose. In the case of the unmodified website (at [60]):

that global web site is, inter alia, directed to or targeted at Australia. That is the whole purpose of the “Australia” option in the drop down box selection offered on the global landing page.

This was also true of the modified website. At [62]:

…. That Australian targeted use on the global landing page controls all that follows when one selects, as did Mr Bennett, the “Australia” option in the drop down box.

It was use as a trade mark

While IHC UK could legitimately say it introduced the brand AFFINAGE into Australia as a matter of historical fact. Its usage of the term went much beyond that.

On the first or unmodified form of the website, the purpose of the profile page or tab in the Australia” section was to persuade people to buy IHC UK’s, “and materially” its Australian distributor’s, products by reference to the AFFINAGE trade mark. At [67], his Honour explained:

When one reads the language of the “Profile” page in context, the repetition of AFFINAGE and the repeated use of “our brands” in conjunction with “worldwide” and “are marketed globally by IHC UK and through its associated companies in the USA and Australia”, the reference to Affinage is not just to a matter of foreign history but part of a current promotion that our goods worldwide, including those offered in Australia, include goods with the AFFINAGE brand. ….

No doubt, part of that context included the fact that one landed on a home page emblazoned with the AFFINAGE banner. But, his Honour, as in the Mantra case, was troubled by the repetitive use of the trade mark and, particularly, the representation that “Our goods “are marketed globally … in the USA and Australia”. His Honour also made the point that nothing on the profile page made it clear that IHC UK no longer held the rights to AFFINAGE in Australia.

The modified version of the website, featuring both the AFFINAGE and A.S.P. trade marks, was much closer to the line. Despite the separation between the 2 marks and the removal of Australia from the drop down box for AFFINAGE, however, Logan J considered it was still using AFFINAGE to target Australia in a trade mark sense. At [70]:

The “setting” for the viewer of this global landing page has undoubtedly changed and changed in a way that seeks to create a discrete Australian “target”. What remains though is a determined endeavour to place AFFINAGE in the mind of the viewer who has an interest in reading further in relation to Australia. The Australian “target” remains on the global landing page as a fixed feature. A connection between the AFFINAGE brand product and the ASP brand, each formulated by IHC UK is promoted and promoted to an Australian viewer. What the global landing page does not say is that IHC UK has no connection with the AFFINAGE brand in Australia. Instead, the overall “setting” is that there is an Affinage world brand in which the Australian province is known as “A.S.P.”. This, in my opinion, remains a use of that sign in Australia in connection with marketing contrary to the terms of the undertaking.

Accordingly, IHC UK was ordered to remove :

  1. Australia from the drop down country box;
  2. the A.S.P. pages from its website
  3. any references to Australia from its website; and
  4. any links between any new A.S.P. website and the AFFINAGE website.

FCR O35 r11(2)

For those interested in procedural matters, Logan J refused to follow the Ucorp ruling and concluded that FCR O35 r11(2) conferred a power only; there was a discretion whether or not to award an injunction once it was shown the terms of the undertaking had been breached.

International Hair Cosmetics Group Pty Ltd v International Hair Cosmetics Limited [2011] FCA 339

Recent microblog (twitter) posts

Saturday, August 15th, 2009

Following in the footsteps of Marty Schwimmer and Dennis Kennedy, I shall try a weekly post aggregating selected IP “tweets”. If you’re keen on greater currency, my tweets also show up as they’re made in a side bar on the website.

  • RT @priorsmart: RT @ernestgrumbles Is the Fed. Circuit pro-patent? Maybe Not http://bit.ly/Kd9gR (empirical study of decisions)
  • RT @dhowell: RT @entlawupdate How the RealDVD ruling could reshape copyright law http://bit.ly/2sud8B
  • RT @dhowell: Kaleidescape loses; DVD copying falls again (@sandocnet; h/t @HScottLeviant) http://ff.im/-6wPw7
  • RT @DuetsBlog: Branding strategy To Google or Not to Google http://ow.ly/jGvG
  • Working up a theme here? RT @asilverstein: The risks of modernizing a trademark http://bit.ly/h3FkN
  • Patently-O analyses Bilski’s Patent Application http://ff.im/-6tlCF
  • Patry is back: Moral Panics and the Copyright Wars: Are There Any Lessons in the P2P Trials? http://ff.im/-6rp7B
  • AmeriKat looks at the briefs in the Catcher in the Rye appeal http://ff.im/-6roVs
  • RT @priorsmart: RT @ernestgrumbles Is the Fed. Circuit pro-patent? Maybe Not http://bit.ly/Kd9gR (empirical study of decisions)

Let me know if you think this is a worthwhile exercise or not.

If you’re a twitterer, you can find me at @wrothnie

Terms of Service Tracker

Monday, June 8th, 2009

The blogosphere ‘lit up’ and Facebookers (?) went on the rampage when it emerged that Facebook was unilaterally changing its terms of use (and not telling anyone) - Facebook: All Your Stuff is Ours, Even if You Quit.

Jonathon Bailey at Plagiarism Today looks at the EFF’s new TOSBack so you can keep up to date with how your service provider is “shifting the goalposts”.

Google, for example, amongst other things insidiously changed “Terms of Service for Blogger.com” to “Blogger Terms of Service”. (Vote of thanks to whichever Supreme Being I’m following today that I don’t use Blogger!)

All joking aside (and remembering the outrage at Facebook – hope Twitter doesn’t own all my tweets?), this could be a very practical tool.

p.s. Facebook did allow its outraged users to set up a community on Facebook to campaign against the change.

Copyright infringement and Twitter

Thursday, May 7th, 2009

Plagiarism Today tries to unravel how Twitter (attempts to) deal with claims that material posted infringes copyright.

Short of the odd haiku or authorisation, shouldn’t there be some prize for  infringing in 149 characters or less?