Another pointless renaming exercise, which will benefit few apart from signmakers and stationers.
Tuesday, 27 August 2013
Another pointless renaming exercise, which will benefit few apart from signmakers and stationers.
Sunday, 25 August 2013
It is therefore right that I should delete all the critical things I said about Red Bull (except those that are historical fact, mentioned above). It does not change my view of the trade mark system ...
The trade mark system was designed to allow people to use similar, even identical, trade marks for different goods. The less inherently distinctive a trade mark is, the less different the goods should have to be. The degree of naming freedom depends on the distinctiveness of the mark and the degree of similarity of the goods. A trade mark system that grants exclusive rights over an ordinary adjective that, as far as I know, is not used as a trade mark other than with a specific noun, is a broken trade mark system - but we already knew the CTM system is pretty badly broken, and through trying to keep up with it so is the UK one. Red Bull rely heavily on the trade mark system - so they need to learn to treat it with respect, and not behave as if a registered trade mark gave them exclusive rights to parts of the language.
Thursday, 22 August 2013
I would have thought that it was patently obvious by now that there's really no way to get round the need for a licence. It's easy to think of the CLA as avaricious and unnecessary, if you are a user of photocopiers, and a burden on taxpayers, if the user is a public body: but from the point of view of an author whose work may be photocopied rather than bought, it's a godsend.Twenty new councils have taken a copyright licence following legal action by CLA against one of Britain’s largest city councils.Earlier this year (April 2013), Brighton & Hove City Council agreed to pay CLA an undisclosed sum to cover legal costs and retrospective licence fees as well as agreeing to take a licence for the future.Lawyers acting for Brighton & Hove had originally told CLA that it was not at risk of copyright infringement as it operated a ‘no copying’ policy, but evidence gathered by CLA showed that the policy had not worked and infringement was taking place.Following the settlement with Brighton & Hove, 5 councils that had previously cancelled their licence have contacted CLA following internal reviews that showed they were at risk of copyright infringement – and consequential legal action.Martin Delaney, CLA’s Legal Director said: “I am pleased to see that councils are recognising their legal requirement for a CLA licence. This will help us to protect the UK creative industries, worth more than £36.2 billion to the UK economy .”Mr. Delaney emphasised CLA’s continuing determination to investigate reports of copyright infringement and pursue councils that do not have a licence, but should have one:“All of CLA’s licensed councils are surveyed on a rolling program and our data shows that copying is widespread during the course of day-to-day activities. There is no reason to doubt that these practices occur in all of the remaining unlicensed local authorities as well.”CLA monitors councils where it is believed that copyright infringement is taking place and investigates reports of copyright infringement in the workplace provided by individuals. If a council is found to be infringing copyright, then in some cases, its officers and employees can be held individually liable.140 of 450 UK councils remain unlicensed when it is likely they are copying from digital and print publications covered by CLA.
Thursday, 15 August 2013
Friday, 9 August 2013
Wednesday, 7 August 2013
French, they say, is the language of diplomacy; English, the language of business; Italian, the language of love; and Swedish, the language of secrets. That last may have been made up by a former colleage of mine, married to a Swede, who would engage her Swedish opposite number in incomprehensible conversation at international meetings. But it's also a language with a sense of humour.
I didn't know until now that there is a Swedish Language Council, functionally equivalent to the Academie Française, something which we could do with here: I was reading a consultation paper from our so-called Intellectual Property Office this morning (on designs, from last year), although it was only with a huge effort of will that I proceeded past the first split infinitive (which occurred in the list of contents). Whoever wrote such appalling rubbish - that split infinitive was the start of a litany of grammatical errors of one sort or another - needs some compulsory re-education, not necessarily in the sense in which the word was understood by various communist regimes, a bit more humane.
A while ago I read that the word "ogooglebar" had been coined in the language of secrets to mean something that cannot be found on the Internet using a search engine. Of course, to use the verb "to Google" (or, worse, "to google") to mean to conduct an Internet search is inexcusable, though common, and Google no doubt have to work hard to avoid genericide. They have taken exception on the same grounds to the new Swedish word, according to The Week (thanks to Sarah for sending me the cutting), and back in March (no, this is not really news) it was removed from the list of new Swedish words, the first time this has happened. "Henifiera", a very useful word and equally useful concept, meaning to use the pronoun "hen" to mean "he or she" (or, often, "they" in studiedly neutral prose, or "he/she" or "(s)he" in the work of authors of doubtful literacy), remains.
You can read the official statement here, but don't tell anyone what it says.
Thursday, 1 August 2013
Nowadays, although there are still mechanical aspects to vehicle security, it's an area which has a great deal more to do with electronics. It was to protect the algorithm that lies at the heart of the security system it uses (along with several other manufacturers), the Magamos Crytpo chip, that Volkswagen found itself in court last week (Volkswagen Aktiengesellschaft v Garcia & Ors  EWHC 1832 (Ch) (25 June 2013)).
The facts were quite simple. A handful of academics had "attacked" (as they say in the field) that security system, and discovered some flaws. The vehicle manufacturers who stood to be embarrassed by those flaws might, you'd think, be grateful, but the academics proposed to deliver a paper at a conference, and in doing so would reveal the key algorithm to the world. In the name of "responsible disclosure" they had not simply gone ahead and done this: they had talked to the proprietor of the confidential information concerned. But they hadn't talked to VW, not until much nearer the date of the conference (which was last week, hence VW's need to seek an interim injunction).
There was an issue about VW's right to sue. The algorithm was devised by Thales, who were not initially a party to the action, but the judge added them as a "proper and necessary" party, saying that it was likely within the meaning of Cream Holdings Ltd & Ors v. Banerjee & Ors  UKHL 44 (14 October 2004) that "the confidentiality in the Megamos Crypto algorithm belongs to them", which is an interesting way to express it. This point did not stand in the way of an injunction being granted: Thales had standing to sue, but the judge held that VW did too, as they had a legitimate interest in being a co-claimant.
There is an old Jacob J case, Mars UK Ltd v Teknowledge Ltd  EWHC 226 (Pat) (11 June 1999),  2 Costs LR 44,  EWHC 226 (Pat),  FSR 138, on reverse engineering, in which he held that it was not a misuse of confidential information to reverse engineer a product you had bought even to obtain information encrypted for security. The present case was argued on the basis that that case had been correctly decided, though that is in dispute, and (of course) it was the claimants' submission that it did not apply because the Scorpio Programmer software was not legitimate. The judge ended up relying on the "murky" origins of the program and the lack of effort on the part of the defendants to ascertain whether it had been produced by legitimate reverse-engineering or otherwise, and on that basis he held that there would be a breach of confidence. Should an injunction be granted to prevent publication? Not merely to save VW's blushes, said Mr Justice Birss, considering Article 10 of the European Convention, section 12(3) of the Human Rights Act, and the Cream Holdings judgment (but not American Cyanamid, which he said was clearly not the right test in the circumstances), which gave the guidance that the standard for not allowing publication is a flexible one, and that the court should be "exceedingly slow" to make interim orders if it is not satisfied that the claimant will probably succeed at trial.
Thales or VW would, he thought, probably succeed at trial, so that hurdle was cleared. Then the balance of public interest and the public interest defence fell to be considered. Freedom of expression and academic freedom were very important, but the epidemic of car crime that would be unleashed if the algorithm were published was more important. The software is sold by someone who understands that it can facilitate crime: there's a disclaimer that says (sic)
All devices and software developed by Scorpio-LK Ltd. are designed and sold with legal purpose to enchance and help people working in the sphere of car repairs and maintenance. The company doesn't take responsibility for any misuse of our products for illegal purpuses. Hence persons misusing our products for illegal purpuses bear their own responsebility for such acts.And elsewhere:
Scorpio-lk Ltd accepts no responsibility for misuse of software for illegal purposes. The purchased softawre can only be used to repair vehicle immobilisers. On purchase of software client accepts responsibility for software use rendering Scorpio-lk Ltd unaccountable for illegal use.The English, incidentally, seems no more broken than that of many native speakers. But the judge concluded that the claimants would probably be able to show that the software was not legitimate, and the defendants should have appreciated that.
The judge granted the injunction sought by VW, requiring "redaction" (the trendy alternative to "editing") of the paper they had written. They could still impress their peers by showing that they had derived the algorithm, and the claimants could remedy the problem identified with it: win win. The judge clearly came to the view that the defendants' protestations about "reasonable disclosure" were nothing more than self-justification, and not the actions of responsible academics - a harsh view, but consistent with their reluctance to take even a few simple steps to ascertain where Scorpio-Lk Ltd had found the algorithm.
Times change. Rock bands do sponsorship deals for more than just a few bottles of beer. In motor racing, the sponsor's name usurps that of the maker of the cars. And as the world knows, in Fenty v Arcadia Group Brands Ltd  EWHC 2310 (Ch) (31 July 2013), or Rihanna v Topshop as it is better known, the popular singer succeeded in her passing off claim against the retailer which was offering garments bearing her image. In fact, it looks to me like a particularly unflattering image, but that doesn't seem to have been raised in the trial, although there might well have been a remedy had that been proved. On the other hand, it might simply be fashionable to look like that, though I cannot understand why that might be the case. And a fortiori I cannot understand why anyone might wish to hang such an image on their chest. But some people might have said the same about my Lindisfarne tee-shirt (my parents probably did, which may account for why I have no idea what became of it) so I will say no more on that topic.
In the present case, it was important that the image used was from a particular photo-shoot which meant that it resembled one of Rihanna's album covers. It was also relevant that Topshop courted celebrities, and had put on promotional events with Rihanna in the past - so the public would be receptive to the idea that there might be an endorsement here. The garment and its swing tag were completely lacking in any reference to Rihanna (although the garment had been sold online under the rubric "RIHANNA TANK", a point which the judge regarded as making no difference). Customers would, the judge decided, buy the garment having been deceived into thinking that it was duly authorised by their icon. He went on to conclude:
75. The mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off. However the sale of this image of this person on this garment by this shop in these circumstances is a different matter. I find that Topshop’s sale of this Rihanna t-shirt without her approval was an act of passing off. I find for the claimants.Mishcon de Reya, Topshop's solicitors, say that their client will be seeking leave to appeal. Leave, one might think, to throw more good money after bad. It seems to me (a safe distance from the case, of course, and therefore unaware of all sorts of things that might make me think otherwise) that in the light of Irvine Topshop's defence was doomed to failure. Birss J's judgment is not a major development of the law of passing off: it seems to me to be a smaller step from Irvine than Irvine was from the cases that had gone before. Of course the judgment is fact-specific, and the sale by a trader of a garment bearing the image of a famous person will not always be passing off. But it seems to me that you could change the facts quite a lot and still be in the passing-off zone.
This strikes me as a clear-cut case of passing off, and one which happily makes arguments for the introduction of some ludicrous new image or personality right, like the Guernsey Lawyers' Welfare Ordinance, less compelling than otherwise they might have been.