the grass is greener on the internet

March 16, 2010, 9:11 pm
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Either the lawyers at Apple are:

a) bored;

b) now getting commission per lawsuit; or

c) losing sight of the big commercial picture.

As you have probably heard, they have attempted legal action to restrain the use of both the Woolworths logo (disputably fruit-like) and a product called DOPi (iPod backwards).

(They have also sued Samsung over the use of certain technologies without permission, which is fair – although I note that Nokia’s suit against Apple for similar reasons didn’t seem to get as much press.)

Opposing someone elses use of a trademark requires an analysis of whether it is ‘deceptively similar’, taking into account the types of products as well as the people who would be exposed to both marks.

I would not be the first blogger to point out that to your average consumer this just looks like rubbish. And thus far, the Australian Trade Marks Office has agreed…

Woolworths v Apple

If you cannot tell that these are two completely different brands, get your eyes checked. The gradient work is completely different.

So remember kids, 'i' comes before 'p', except after a lawsuit

Beware, therefore, if you ever want to launch this:

The news of this lawsuit is building and may only serve to draw attention to ‘Wholesale Central’, the otherwise forgettably-named owner of the DOPi logo. Potentially disastrous if they were intending on bringing out similar products! (Unless this is the intent as it goes back to promoting the use of their own products in a twisted kind of way…)

Just because you might be able to launch a lawsuit…doesn’t mean you should. Microsoft comparisons have already been made.

This just makes Apple look like a dictator – we can excuse them for making their products exclusively work with each other, but petty lawsuits can become nasty PR very easily. It’s just as simple as me clicking ‘publish’…


Spam response 2#
October 2, 2009, 10:52 am
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It’s always good to keep an email short.

But it doesn’t help when one of your sentences (or 20%) is this:

A content strategy, supported by a well defined and implemented “publishing” process, is the key to unlocking the full potential of lead management and sales enablement initiatives.”

Though I’ll take that over this any day:

That damage is an element of the tort of negligence is not in doubt: actionable injury completes the cause of action, so that time begins to run for limitation purposes only from the moment it occurs.”

I seem to have picked two disciplines which are just full of meaningless waffle.

Law game v Sales game
August 1, 2009, 5:13 pm
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Answering a question as a lawyer is like playing soccer. Figure out the frame of reference; stay on the pitch; work out which way you’re going and then get to the goal – getting past all exceptions and defences.

Sales is more like cricket. You pitch. When they hit back you make sure that whatever direction they go in, you’re there too and you bring it back to the same spot. Repeat until they’re out.

And marketing? Well, that’s a whole different ball game.

Search engine response 1#
July 9, 2009, 4:35 pm
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I like to help people. Generally speaking.

So I note that some search engine cleverly delivered someone to this blog four times with the phrase:

“can you patent brand image”

I find this slightly confusing as I’m reasonably sure that I’ve never discussed patents on this blog. However, in response:

No, you can’t.

Patents are used to protect inventions, ie. product design. FYI, they usually need to take an ‘inventive step’ to solve a problem. ‘Inventive step’ means ‘not obvious’. (read: at discretion of the judge) Once you’ve patented an invention you can take claims against people trying to register similar ideas.

What you probably want is a trademark.

This allows you to protect phrases, made-up words, images…basically all of your branding. Other people can register similar trademarks, as long as it won’t be deceptive.

Assuming you find me again, hope that helps. Of course, this is ridiculously simplified and you should look for your country’s IP authority website at the very least.

James Hardie: more responsibilities
April 27, 2009, 8:35 pm
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Mulling over the latest James Hardie decision, by Gzell J in the Supreme Court of NSW last week.

The big deal is over releases made to the ASX in 2001, stating that James Hardie Industries would have enough funds available to pay compensation to asbestos victims. (If I’m not mistaken, the case was brought by ASIC following a recommendation in 2004 that they take this angle instead of trying to overturn limited liability.) As it turned out, they didn’t – a matter complicated by their use of partly-paid shares and creating new corporations to shift funds within their corporate structure.

When asked whether they had approved the release, or were aware of the financial situation at the time, selective amnesia spread through the directors like chicken pox through a Grade Two class.

The unfortunate covergirl of the decision is Meredith Hellicar – in part because of her resignation from Amalgamated Holdings following the decision, and in part because of the doubts cast over her character after some interesting contradictions in her evidence. (Also the only female defendant out of 11, but who’s checking?)

However, the another focus came through in the media; should directors be expected to be a new class of super-diligent human?

We do have greater expectations of those that run the country and companies, because they’ve put their hand up as being fit to do their duty. But how far should it go? The reason why companies have employees is that there is simply too much work and too much specialisation required for one person – or a small group of persons such as a board of directors, for that matter.

  • So to what extent can they be held responsible for the actions of the people actually doing the work?
  • Should they have to check all information instead of relying on the people who specialise in the area?
  • Should directors be expected to read every word of every email that comes through their inbox, on top of running a company and fulfiling other duties in their life? (I know I have enough problems balancing law readings and Facebook, and I’m ashamed to say which usually wins.)

For me this touches on a larger issue. After studying corporate law for twelve weeks straight and knowing how to find and interpret the relevant legislation and cases, I can tell you roughly where the law stands on each of those questions. But for those with no legal education, how can they ensure they’re following the law short of having a lawyer with them at every turn?

And it’s not just directors; as inhabitants of Australia we have a duty to follow its laws…

How can the public follow the law when it takes 4 years of study to learn what it is and what it means (and even then you don’t know all of it)?

IceTV has IP
April 22, 2009, 5:58 pm
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From a law student’s perspective, many bad things can happen during the course of a subject. You can realise, for example, that you have 2000 pages to read before your exam next week. This is slightly unpleasant. You might also realise that you based an entire essay of legal advice on an argument made in a minority judgment (which not only probably makes it wrong but the complete opposite of the law).

But the worst thing which can occur, which is completely out of your control, is that some arm of the law (be it the executive, the legislature or the judiciary, though it’s not like they’re all separate anyway) will do something which changes the law as we know it.

So thanks, IceTV, for changing Australian intellectual property law by watching TV.

That’s right…one of the deciding factors in this case was that the staff at IceTV watched TV to determine a schedule of programmes…instead of just looking in the TV guide like everyone else.

Sounds silly, but that’s what just gave them a victory in a copyright case brought by Channel Nine.

Nine, technically speaking, has copyright over their TV schedules. After all, it takes a lot of effort to create a schedule, including program summaries, titles and times. They license the right out to publications so that you or I can figure out the night’s viewing.

If IceTV had copied a substantial part of the schedule (as happened in a case Telstra brought against Desktop Marketing Systems in 2002) Nine would be well in their rights to sue. But the High Court has held that IceTV used independent methods to come up with the schedules used in their online television recording service, and hence did not breach Nine’s copyright.

So apart from annoying law students around the nation, what are the practical implications?

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