Tuesday, November 17, 2009

Google Wave - Issues and Opportunities

Google Wave - Issues and Opportunities

A colleague of mine, James Goodwin, has been given one of the prized beta log-ins for the Google Wave project. He has very kindly invited me and I have had a play - starting a few waves and pings.

My initial thoughts are that the Wave may replace email as the main mode of communication in businesses. The tag system may also replace the need for a document management system if it is carried out in a systematic way. However, this will create immediacy problems with instant collaboration that was usually reserved for meetings and conference-calls.

I also think there may be copyright issues in relation to instant collaboration on projects. If you are working with a third party on a document or idea using a wave then you are likely to be considered joint authors (if the contribution can not be distinguished) of the work and as such you will be restricted in the autonomy you have over the work created.

The other normal issues of Software as a Service still remain - who back ups your waves? How secure are the waves and what levels of service (ie availability) do you expect.

It will be interesting to see if adoption is fast once full access is rolled out. I believe there will need to be a critical mass of users before the wave pervades the business environment in the same way Twitter is now doing.

The ability to create applications for the Wave will provide businesses with lots of opportunities so, as always, there will be some that adopt early and lead the way.

I guess the wave project is evolving and my comments and opinions are likely to evolve with it. I will try and keep pace and keep playing.

Wednesday, November 11, 2009

Twitter ID Squatting - What to do if you are a victim

Jeffrey L. Cohen has written a clear and concise post on how not to Fall Victim to B2B Twitter Squatting. Click Here.

I have considered what can be done should a business fall victim:

There are two main courses of action available to victims of B2B Twitter Squatting.

Firstly, you can contact Twitter to report a breach of the terms of use. to report an impersonation or you can report trade mark violation.

Secondly, you litigate based on your trade mark or rights of passing off. The first step is to normally to send a cease and desist letter to the owner of the offending Twitter account requesting that they delete or transfer the offending profile and provide undertakings not to do similar in the future.

Finding the impersonator can often be difficult if they hide behind the anonymity afforded by social media but there are options including service via Twitter!

Practically, the reporting route is going to be less expensive than instructing lawyers and may ultimately be more fruitful. Litigation can be even more costly and difficult if the ID squatter is resident in a country where it is difficult to enforce judgements.

However, Twitter et al may ask you to prove that you have rights in the ID name before suspending an account and indeed Twitter asks for the trade mark registration number when complaining of trade mark violation/infringement. The easiest way to show you have rights in a name is to obtain a registered trade mark.

As SM grows and new platforms are used it will be interesting to see if there will be the need be a uniform dispute resolution procedure for SM ID's similar to domain name disputes. Logically, the ID squatters on Twitter et al will try to extort money for the transfer of the profile account.

The moral of the story is, as Jeffrey L. Cohen says, be there first.

I would add that this is especially important if there are other brands or businesses who have equal entitlement to an ID

ie Polo

Think Nestle, Ralph Lauren and Volkswagen.

Thursday, November 05, 2009

Software Patent v Copyright

Will the rise of the software patent eclipse copyright as the predominant way of protecting and enforcing proprietary rights in software?

This maybe the case in the US where software patents are more easily obtainable but in the EU and particularly the UK there is still substantial resistance to the granting of software patents unless they have a technical effect.

Software patents will probably rise with cloud computing. With applications hosted in a third party server which is accessed by users there is unlikely to be "copying" of a substantial part of the source or object code so copyright will become less important. The patent will become more important because if a rival develops software which falls within the "claims" of a registered patent it will infringe. A patent being a monopoly right.

Copyright will, of course, still be very relevant to the data and content held within and displayed by the software. These will still be capable of being copied and copyright will be still be the right used to enforce.

Patents are expensive to prosecute and will preclude the small software developers from obtaining them particularly when you need a patent in each country you want protection.

Do we need a global software patent to safely protect investment in cloud applications?

Tuesday, November 03, 2009

Company Names Tribunal - 1 year on

One year on and the Company Names Tribunal (CNT), which was set up to provide a remedy against opportunistic company name registrations, has so far been good news for brand owners.

So called opportunistic company name registrations are similar to ‘cyber squatting’ where domain names are registered in the hope that the brand owner will purchase the domain from the squatter.

The same practice occurs in the registration of company names where the squatters try to take advantage of a brand in the hope of extorting some money. The brand owner having to use traditional trade mark and business name remedies to have the offending company struck off or forced to change its name.

The CNT can order these squatters to change the name of their company within a specified time as well as order the payment of costs. This can be a valuable addition to the brand protection arsenal of all companies.

The CNT procedure is a formal legal process initiated with an application made to the CNT. The Company Names Adjudicator will assess evidence submitted, then decide a case and award costs if appropriate.

Out of the 39 cases that have been reported so far, 35 applicants have been successful in requiring squatters to change the company name. The first successful applicant was Coco-Cola but there are numerous smaller corporations who have taken advantage of this useful tool.

However, the scope of remedies is limited to the changing of the name so it will not provide a solution to a company where the infringing company changes its name but continues to use the name as a trading name. This illustrates that merely having a company name registered with Companies House gives few rights in itself and that companies will still have to use trade mark and passing off laws. A registered trade mark giving the strongest rights of all.

If you find a company that you think has a name which is an opportunistic registration then you will need to consider the position carefully. The circumstances in which the CNT will make decisions are limited and there is a cost involved in making the application and also cost penalties if the application is not successful.

There is also the ability to appeal the decisions of the CNT to the High Court with even higher costs implications. Therefore the CNT, whilst a useful alternative to litigation and trade mark infringement action, can be seen as another formal legal process and should be used with caution and under advisement.

That said, given the high percentage of successful applications if used correctly, this is another string to the bow of brand owners to defend their much coveted brands.

Directors liable for infringing patent!

Boegli-Gravures SA v (1) Darsail-Asp Ltd (2) Andrei Ivanovich Pyzhov [2009] EWHC 2690

This case is a warning for all directors and shareholders of a company which may be infringing a third party’s intellectual property rights.

This case concerned a patent for embossing foil for packaging. The claimant brought a claim against the company and a director/shareholder of the company on a joint liability basis.

The patent was held to be infringed and that because the director had taken a personal involvement in the act of infringement, outside of his role as a director, that he was jointly liable with the company.

In this case the Defendant had negotiated with the Claimant on a personal level and took the decision to supply the infringing products.

There are two important points to note here:

1) all directors should undertake negotiations on behalf of the company and take important decisions at board level;

2) conversely if bringing infringement action against a company with no assets it may be worth pursuing the directors if they are acting in person and not within the powers given to them by the company.