Atlanteknology - Technology News for Atlantic Canada

Three stripes and you are out

Not that it really needs to be repeated....but trade-marks really have value. Just ask Payless shoes.

A jury in Oregon recently ordered Payless shoes to pay Adidas (my favourite brand) over 300 million in damages for trade-mark violations involving the distinctive three stripes in the Adidas logo. Payless had created shoes with three stripes that looked, well, a bit too much like those Adidas has made famous.

Not every brand reaches the stage where it is worth that kind of money but on the other hand, one never knows at the outset how powerful a mark will be. Protect them early and often! Marks are valuable. Just ask Coke.

What is old, is new....

Last night I discovered something I thought was quite interesting. The British have made all proceedings/case at the Old Bailey (London's central criminal court) for the period from 1674 to 1913 available online.

It is fascinating to go back and look at the old cases, the facts, and how things were dealt with at that time. Most fascinating to me are the old copyright and trade-mark cases. What struck me immediately is that the facts patterns stay the same - then and now (in a general sense). Not all that surprising I suppose.

In any event, the cases make for great reading, especially if you are a history buff. Enjoy!

The apple of my eye-p (intellectual property)

I was listening to CBC radio this morning on my way in to work and there was a story on the apple growing industry in Nova Scotia. Anyone who has been here will know that the area called the Annapolis Valley is the apple growing area of the province and that the apples grown there are exported around the world.

In an effort to create new markets and change in the face of consumer tastes, various growers are turning to organic growing techniques. The story discussed various aspects of the industry, including how one Acadia University PhD student is conducting organic apple research on behalf of the Nova Scotia Fruit Growers' Association - the goal being (in part) to see if all natural treatments can be developed to replace the chemicals that help to manage the size and number of apples each tree produces. The reporter discussed some of these techniques but then went on to mention that they were not given further details because of......yes, thats right, intellectual property concerns.

The story was, to me, a perfect example of how intellectual property issues arise in all manner of commercial enterprises. I suspect that many people would not associate apple growing with cutting edge intellectual property matters but the truth of the matter is that farming, in general, produces a great deal of advancements, many of which are costly and are worthy of protection.

An apple grower, for example, would have a great advantage over competitors if that grower acquired (or group of growers acquired) an all natural technique to replace the chemicals that control the size and number of apples produced by a tree.

There are a number of ways she could protect this information including (potentially) a patent. The less costly alternative is via what is called "trade secret". The best known trade secret is the formula to Coke. Similarly, the "formula" for an all natural agent could be protected in much the same fashion.

The key of course is to keep the formula secret. Hence the name. And there are all kinds of ways to do this, including having the people who come in contact with the formula sign appropriate agreements concerning confidentiality etc. Also, and under the philosophy that a good defence is the best offence, the single best way to keep the formula secret would be to regulate who has access to it. And so on...

Anyway, I thought it was very interesting. Not all all intellectual property comes from laboratories where white coated technicians run around peering in to microscopes.

Have an apple - they are good for you. and don't forget to compost the core (assuming you do not eat it too).

Why write?....to get it right, that's why

I was re-reading some older cases today and came across an interesting one from late 2006 that I think illustrates several important points business people need to consider when they enter into a business relationship with other parties, and particularly parties with whom you are not familiar.

The case (formally known as Onkea Interactive Ltd. v. Smith 2006 BCCA 521) actually centred around an application for an injunction by the plaintiff (Onkea) against the defendants (Smith and others).

It is the background of the case that interests me. The plaintiff created what it described as a proprietary system whereby it used peer-to-peer file sharing networks to advertise adult websites. It wanted to join forces with the defendant to further develop the business.

The plaintiff and defendants incorporated a company (it is not mentioned in the case but I presume the plaintiff and defendants were shareholders) with the intention that the newly incorporated company would function as a joint venture vehicle.

Subsequently the joint venture broke down and the sides went their respective ways – except that the plaintiff alleged the defendants took the proprietary technology the plaintiff says it invented and started using the technology in its own business.

The plaintiff started a legal action against the defendants.

Two points in the history of the dealings between the parties need to be highlighted:

First, they did not enter into a written agreement. Almost always a big mistake. Here, the plaintiff was alleging the defendant committed various acts in violation of their agreement….except that it is incredibly hard to prove someone has violated an agreement when there is no concrete evidence as to the terms of that agreement.

Second, even if you have a written agreement it is important, especially where there is sensitive or proprietary business information at stake, to have specific clauses (or a separate stand alone agreement) dealing with the confidentiality of information and, as well, non-competition when the relationship ends (regardless of how it ends).

The moral of the story – put your contracts in writing and don’t go for the “quick 2 pager” either.

When is a whisky not a whisky?

It is a sad day …. No not because the Montreal Canadians are going to get eliminated from the Stanley Cup play-offs tonight (not that I care all that much one way or the other – except that I will get to rub the fact of it in to the wounds of my friends) but because Glenora Distillery has lost its battle at the Federal Court of Canada – the battle over whether it can use the name “Glen” in its branding.

Glenora makes and sells a fine whisky called “Glen Breton Rare”. I received a bottle for Christmas – nice stuff, not as fine as some of the top of the line whiskys from Scotland, but still quite good.

The Scotch Whisky Association of Scotland took issue with the use of the word “Glen” in the name, arguing that its use created confusion in the minds of the spirits consuming public – such that the people who consume whiskys would be confused and believe that “Glen Breton Rare” comes from Scotland (notwithstanding the fact that the names “Scotch” and “Scotland” do not appear on the labelling anywhere.

A “glen” is a narrow secluded valley, generally in a mountainous area.

So that I am not accused of being biased, there are wonderful rules in international trade-mark circles that protect geographic areas, this is true. There are also rules relating specifically to spirits. Most commonly associated with such names as “Bordeaux” and “Champagne”.

Unfortunately I have not been able to lay my hands on the actual decision, so I cannot comment on its particulars. Mt comments are general in nature.

First – get some advise before you sink piles of cash into your marketing campaign (and your brand). As the old saying goes, an ounce of prevention is worth a pound of cure – recognizing that advise comes in the form of opinions and one can never be assured that what your advisor views as logical will be viewed as such by another. Or that people will not take a swipe at you simply on strategic grounds.

Second – fight for what you believe in. Some pretty odd things have happened to cases as they wind their way up the food chain. In Glenora’s case, I suspect they will fight – the branding and the brand recognition they have built up are critical to the business.

Finally – in the case of trade-marks and issues surrounding “confusion” consider the effect of education campaigns – example in the case of Glen Breton – targeted advertising confirming the difference between Canadian and Scottish whiskys, and in particular the difference between Glen Breton Rare and “scotch whiskys” – such advertising could be effected at both the retail level to consumers and to wholesalers/distributors/restaurants. Who knows, perhaps they have already done this.

In any event, good luck to Glenora – fight the good fight.

Protection of aboriginal intellectual property

Well, since it is the last day of March, the day before April Fool’s Day, I thought I would write an article.

Something I have been thinking about for some time actually.

I read, in some journal or other, about efforts in Canada and elsewhere, to attempt to protect aboriginal “intellectual property” given the current lack of a formalized structure. Now, some may groan at the notion (owing only to the current and ongoing "debate" over the protection of music and the revision of copyright laws in Canada and elsewhere), but I think it has considerable merit and should be afforded critical analysis.

The reality is that much of certain aboriginal cultures is oral in nature or physical (in the form of some tangible object) and is not easily dealt with in the western system of ownership – wherein a person creates or owns some property right, and has the ability to prevent or grant the exercise of rights by others.

How does one protect oral history in such an environment? Is it worth considering in the context of a western style intellectual property rights regime given the notion of common ownership within the particular community?

Again, I believe it is worth the effort. I am not sure how such a regime might spring into existence but perhaps it would be in the form of a separate and parallel registry to the one that currently exists in most States. A repository for oral, written, physical and other histories that may serve two functions – one to help preserve the histories for their own sake and the second to allow the aboriginal communities to control, if they choose, how those histories are used.

In a similar manner, we are seeing a growing recognition by States, particularly India, that indigenous scientific knowledge is valuable and ought to be protected. India is adopting a strategy to document its traditional medical heritage. In a recent article published in the Lawyers Weekly, Dr. Chidi Oguamanam (of Dalhousie Law School) noted that the approach by the Indian government “…[W]ill make it impossible for second comers to patent around India’s medicinal heritage”.

My own thoughts were more along the lines of what we would generally call copyright, but I think there is considerable merit to watching the development of the system in India with a view to determining whether we in Canada should adopt a similar framework. Having said that, I am always conscious of the problems associated with a pull approach to the development of anything, and certainly if the aboriginal community in Canada (if one can speak so broadly) is not interested in such an examination, so be it.

New Industrial Design Database

This may only be of interest to lawyers or people creating products, but I'll post about it anyway.

The Canadian Intellectual Property Office now has a fully searchable database for industrial designs registered in Canada. The database is complete from 1861 to present.

A quick refresher on industrial designs - they  are the features, shapes, configurations, patterns or ornaments (or any combination of these) applied to a finished article - and this feature must appeal to the eye.

There are over 2000 industrial designs for all manner and type of chair (some of which are more appealing to the eye than others).

The database is here. Happy searching!

Open source code...

Many people have heard of open source code and some will have heard of the licensing regime that follows much of that code - the essence of the regime is that if you use the open source code (ie. code that is freely distributed) you have to share your product with the rest of the coding community.

The unfortunate part is that, when you hire someone to do a job for you, it is difficult to tell if that someone has used open source code, and when you discover it, the horse has already been let out of the proverbial barn.

Under the category "misery loves company", take solace in the fact that even the biggest companies can fall victim to this problem (I call it a problem because companies often pay for some software product in the belief it will be proprietary).

The Motion Picture Association of America created a piece of software for distribution to universities to enable them to monitor their network traffic. Unfortunately for them, the programme contains open source code and a coder in the open source community has demanded the MPAA release the code. So far they have refused.

It will be interesting to see how this plays out. Stay tuned!

Useful (and not so useful) knowledge...at your fingertips

This site is very interesting. An online library, full of useful and not so useful information (care to know all there is to know about ancient archery?).

Called the Universal Digital Library, it purports to have over 1.5 million works in its collection. As the functionality of digital books, like Amazon's new product, become more user friendly, this site may become much more popular than its creator's envisioned.

The works are available in HTML, TIFF, and DjVu formats.

Happy reading.

Infernal machines, or, change is inevitable

Here is a video. I warn you, it is 19 minutes long, but it is worth every minute.

The speaker is Larry Lessing, a law professor at Stanford University. The essential point of his presentation (which you really should watch) is that copyright has evolved in the past to adapt to changing technologies. Ditto with other long standing principals of law (he cites, as an example of the latter, the long held principal that the owner of land owns the column of air above the land to infinity and the ground beneath the land to the centre of the earth). This principal met its match with the arrival of the air plane, and  no one mentions it any more.

Similarly, Prof. Lessing believes that we need to use common sense to dictate how copyright will be used in the future in a world where virtually everything a person does on the internet involves the material of other people. This creativity should not be stifled, indeed his argument is that it cannot be stifled. It should be encouraged and allowed to compete along side the copyrighted material produced and sold by everyone.

I must make clear that he does not believe copyright should be abolished. Indeed, he calls it one of to untenable extremes (the other being that any content which contains even a snippet of copyrighted materials should be crushed and eliminated by the copyright owner).

A worthwhile 19 minutes in my view.