For the London Free Press – May 14, 2012 – Read this on Canoe

A movie studio’s roaring success opened the door for sounds to be trademarked

When one thinks of trademarks, the usual things that come to mind are word marks (the name of a company or product such as “Harrison Pensa” or “President’s Choice”) or design marks (the logo for a company or product such as the Ford blue oval or the McDonald’s arches).

Trademarks can also be registered for colour applied to an object (such as the Nerds On Site red cars, or the UPS brown delivery vehicles). And now we can register sounds as trademarks.

The Canadian Intellectual Property Office (CIPO) recently announced that it will accept applications for sound marks.

Sounds have been registrable as trademarks in the United States and other countries for some time. CIPO’s new position on accepting sound marks results from a long battle by Metro Goldwyn Mayer to register its roaring lion sound.

CIPO’s resistance to registering sound marks apparently arose because the wording of the trademarks act requires marks other than word marks to be filed as a drawing. Sound marks simply didn’t fit into the act’s registration requirements.

Many large brands have distinct sounds that form an important part of their television, radio and Internet advertising campaigns. It is logical that they should be able to file for a trademark for those, as they are no less of a brand than its word mark, logo or colour.

Indeed, sounds that don’t rely on language can become a powerful universal international brand.

We all recognize, for example, the MGM roar at the beginning of a movie, the NBC chimes on television shows and the Intel sound on computer ads.

An applicant for a sound mark registration will have to follow strict rules on the form of the application. It will also have to comply with requirements that apply to trademark registrations generally, such as not being descriptive, and not confusing with existing marks.

Applicants will need to file a recording of the sound, along with a description of the sound and a drawing representing the sound.

Now that these types of applications will be accepted, it will be interesting to see which companies rush to register their sounds in Canada, and how CIPO will approach its decisions regarding which sounds they will accept and which they will not.

http://harrisonpensa.com/lawyers/david-canton 

For the London Free Press – April 30, 2012 – Read this on Canoe

BYOD, or bring your own device, is a hot topic. It refers to the trend for employees wanting to use their own smartphones or tablets for work purposes, rather than the ones their employer provides.

Why would an employee want to use his or her own device? It might be a better or more familiar device than their employer provides. Or they might not want to carry two phones. Or their employer might not provide phones or tablets at all.

BYOD can cause headaches for IT departments. It’s much harder to deal with many different types and configurations of devices in the workplace than one specific device or configuration approved by and owned by the employer.

This is a trend that can’t be stopped, and can have advantages to the employer. BYOD raises legal issues that need to be considered as well.

For example, employers usually have technology use policies that allow them to look at whatever an employee does on his work computer or device, even if the employee uses it for some personal use.

The goal is to be able to monitor and deal with improper employee behaviour, such as wasting excessive amounts of time surfing the net, or violating privacy, confidentiality, laws or corporate policies.

But those policies usually justify monitoring based on the notion that the equipment is owned by the employer. Those policies should be expanded to try to include BYOD devices.

It’s unclear to some extent how effective that will be if the issue gets into court, as there are issues of personal privacy connected with employer monitoring of a personal device. But there should at least be an attempt to address the situation and provide a plausible argument for monitoring in certain situations.

Another issue is how to ensure the privacy and security of employer data on a BYOD device. Businesses must keep personal information secure, and need to keep other information secure for various confidentiality and business reasons.

That is easier to do on a smartphone, for example, that the IT department has configured and locked down to require password access, or to encrypt sensitive information, or to allow it to remote lock or wipe the device if it’s lost or stolen.

That becomes more of a challenge when dealing with BYOD. Technology use and security policies should be looked at in light of this. Should, for example, users be only allowed to use a BYOD device if it has a screen lock?

Another approach is to set up systems so that as much as possible remains in the cloud or company-controlled servers, with proper access security. That way, if a device is lost or stolen, the data is not on the device itself.

Access must be simple and easy, though. Otherwise employees will just ignore corporate policy, and will resort to faster and easier ways to get what they want on the device, such as dragging files into Dropbox, or e-mailing them to a personal email account.

http://harrisonpensa.com/lawyers/david-canton

For the London Free Press – April 16, 2012 – Read this on Canoe

INFORMATION CAN BE USED IN NUMEROUS UNDESIRABLE WAYS

Social media and smartphone apps have made it easier than ever to communicate personal information to friends and family. News, photos and your location can be shared within seconds. But this also means this information is accessible to strangers like never before.

This can occur in more ways than a simple Google search or scan of a Facebook profile. The (now disabled) app Girls Around Me recently stirred up considerable controversy. The app used GPS data to find a user’s location, then displayed information about people who had been in the area and checked in on foursquare, such as their interests, friends, and photos. This happened without the knowledge of those people.

As outrageous as this seems, the personal information disclosed through the app is all information the individuals themselves have posted on Facebook and foursquare and designated as public. If it’s OK to access it through Facebook or foursquare, why are we so upset about accessing it through an app like Girls Around Me?

Context is the distinguishing factor. On Facebook or foursquare, most strangers who view information are somehow connected through six degrees of separation. The information is there, but not easily or readily accessible on a single-purpose consolidated basis.

On the other hand, Girls Around Me marketed itself as a tool for men “looking for love or just after a one-night stand,” a sort of dating site lacking the consent or even the knowledge of the participants.

Although the information was made publicly available by the individuals in question, they never intended for it to be gathered and used in such a way. There is an element of surprise and shock at this use of public information. The fact this is even possible makes people feel vulnerable — and while this may be legal, it seems very wrong. Social norms dictate if you are having a conversation in public, those who can hear but aren’t involved will not join in, but will pretend they cannot hear you. By taking public, yet personal, information and broadcasting it through an app, Girls Around Me flies in the face of the idea of “practical obscurity.”

foursquare has denied the app access to its data, making Girls Around Me effectively useless and Apple has also pulled it from the App Store. However, the privacy concerns remain. It is likely other apps and services will access similar information in the future and use it in unforeseen ways. The lesson here is that in the digital age, public information is extremely accessible and can be used in many unforeseen and undesirable ways.

If you are making an app that uses publicly available personal information, you can’t just think you can use that information as you please. Consent to use personal information is contextual — the legal concept is informed consent. And never underestimate the creepiness factor and the wrath of surprised or outraged individuals.

That can shut down a service faster than any privacy commissioner.

For the London Free Press – April 2, 2012 – Read this on Canoe

Have you ever considered what a service provider – such as a cellphone company or social networking site – can do with the photos and other content you send or post using that service?

Sometimes the terms of use of the service provider are so broad they give the provider the right to use it for things such as their advertising, or to be able to sell user content for the service provider’s own gain.

Terms of use, or terms of service, are the rules we agree to when we contract to use a service. That might take the form of a written contract we sign when we purchase a cellphone, or the click-wrap agreement we click “I agree” to when we subscribe to a social media service such as Facebook or Pinterest.

Terms of use often include some form of licence or permission language stating what the provider can do with content users send or post using the service. Defining that is important to make clear what rights the service provider has to that content. In most circumstances, that licence language should grant the service provider rights to the content that it reasonably requires to provide its services.

Occasionally, these licence permissions are drafted overly broad and grant the service provider the right to do almost anything it wants with the content.

For example a cellphone provider was recently criticized for language that said it: “will be free to copy, disclose, distribute, incorporate and otherwise use the content and all data, images, sounds, text, and other things embodied therein for any and all commercial or non-commercial purposes.”

In most cases, such overly broad language is not a nefarious plot to acquire user content for the service provider’s own use or profit. It is more likely the result of contract drafting that has not been thought through properly.

The drafter was rightly thinking the terms of use needed some licence language to define what the service provider can do with the user’s content. And the language does indeed give the service provider the rights it needs. So from that perspective the clause works.

But the clause is a failure because it grants rights that the service provider doesn’t need, and doesn’t want. And it fails to look at the issue from the perspective of what uses a user would be comfortable granting to the service provider.

In other words, the clause does not balance the rights and needs of the parties.

So why would a service provider care, given that most people don’t bother to read terms of use?

Some people do read them, and eventually the language will end up being publicly criticized. That doesn’t bode well for the reputation of the service provider, and it may never know how many potential users voted with their feet and didn’t use their service because of the overly broad language.

For the London Free Press – March 19, 2012 – Read this on Canoe

Ever wonder why reality TV shows are not sued by contestants over their portrayal on TV?

It’s because the releases they sign effectively prevent that. John Turmel, a contestant on CBC’s Dragons’ Den, found this out the hard way after suing CBC based on an unfavourable portrayal on the show.

The show features contestants pitching new business ideas to the dragons, who then decide if they’re interested in investing in them. Turmel was approached by the show based on his public speaking experience.

The producers thought he would give an interesting pitch, although they didn’t know ahead of time what idea he would be presenting. Turmel attempted to pitch his idea of a local currency based on poker chips.

The dragons were very confused by his 15-minute pitch and were not particularly kind when expressing this to Turmel. One dragon stated she had no idea what he was talking about while another invited him to burst into flames.

The pitch was edited down to a one-minute segment that was broadcast as a lesson to future contestants that a pitch must be clear and easily understood to attract the dragons’ interest.

Turmel sued the CBC for breach of contract and defamation. The court dismissed his claims on a summary judgment motion as there was no genuine issue requiring a trial.

He appealed to the Ontario Court of Appeal and argued the contract was unconscionable. Again it was found there was no issue for trial. The Supreme Court of Canada refused to hear Turmel’s appeal.

The crux of the courts’ decisions was the depiction release signed by Turmel. It provided that the footage filmed during his pitch could be used in any way CBC saw fit.

The release stated that Turmel consented to this and, more specifically, set out that Turmel acknowledged his depiction on the show could possibly be “disparaging, defamatory, embarrassing or of an otherwise unfavourable nature which may expose [him] to public ridicule, humiliation or condemnation.”

The release also stated he could not sue for loss or damages, no matter how caused.

Turmel was given the release, along with material about the show, prior to his taping. He had never seen the show, but he chose not to despite the CBC’s encouragement for him to watch a few episodes.

He was given the opportunity to obtain legal advice regarding the release; he chose not to. Turmel signed the release under his own free will. The release was clear and straightforward.

All those factors led the courts to decide that the release was binding and therefore Turmel had no grounds upon which to sue. Turmel was aware of the explicitly stated risks, and still chose to sign and participate in the show.

There’s always a chance that reality show participants will not like the light in which they are ultimately cast, but that is the risk they assume to get their 15 minutes of fame.

For the London Free Press – February 6, 2012 – Read this on Canoe

LONDON SUMMER OLYMPICS: New restrictions being implemented, but how the policies are enforced raises many unanswered questions

The 70,000 volunteers for the 2012 London Summer Olympics will have to think twice about what they upload to Facebook, tweet or blog. They have essentially been “hushed” from discussing certain topics in certain ways by the International Olympic Committee (“IOC”) throughout the Olympic Games.

The IOC has come a long way to lighten up on its restrictions on the use of social media over the years. But some are still outraged by them. The reasons behind the restrictions include security, athlete privacy and of course, trying to maximize revenue from traditional broadcast rights.

Participants have not been told to completely disconnect from social media, as some bloggers have suggested. But the IOC has essentially tried to prevent users of social media from acting as journalists.

The IOC says participants are allowed and “encouraged” to use social media tools. However, they are also explicitly told “any such postings, blogs or tweets must be in a first-person, diary-type format and should not be in the role of a journalist.” The IOC explains this means any blogs and tweets “must not report on competition or comment on the activities of other participants or accredited persons, or disclose any information which is confidential or private in relation to any other person or organization.”

Participants are not banned from taking pictures or videos. In fact, still pictures can be posted on Facebook. The only restriction is that participants are “not permitted to commercialize, sell or otherwise distribute these photographs.”

Understandably, the rules regarding the residential area of the Olympic Village are a little more stringent because of the protected environment those staying there are promised. For example, before any pictures can be uploaded, the prior consent of the people in the picture must be obtained. Any videos taken in the residential area must be for personal use and cannot be uploaded.

The IOC Guidelines go on for four pages and discuss topics such as “Olympic Marks,” “Advertising and Sponsorship,” “Domain Names,” “Website Links,” “Liability” and how the rules will be monitored and what might happen if a participant Infringes the rules.

The London Olympics Organizing Committee recently released its rules which are a bit more stringent. A list of the rules taken from the policy’s “what to do and what not to do” warns volunteers not to:

Disclose their location; Post a picture or video of backstage areas closed to the public; Disclose breaking news about an athlete; Tell their social network about any athlete or celebrity; or Get involved in detailed discussion about the games online.

However, participants are allowed to retweet official London 2012 postings and otherwise relay official information releases.

Clearly, there will be issues with respect to enforcing these policies. Does disclosing your location include “Having lunch at the Village?” What is “detailed discussion?” While restrictions relating to security and privacy are understandable, one has to wonder what the point is in preventing someone from tweeting “X just won the 100 meter dash?”

For the London Free Press – January 23, 2012 – Read this on Canoe

The Office of the Privacy Commissioner of Canada (OPC) recently tabled its Annual Report on the Privacy Act. The airport scanner issue receiving much of the press, however there are a number of other noteworthy items in the report. The Privacy Act is the legislation that applies to the Canadian federal government.

Regarding airport scanners, the major concern is whether the Canadian Air Transport Security Authority (CATSA) and the airport screeners it hires under contract are respecting the privacy rights of travellers. While some elements of good privacy management were found, an audit performed earlier in the year identified a number of areas for concern. Of particular note was the security over the images produced by the full-body scanners. Despite being strictly prohibited, a cellphone and closed-circuit television camera were found in the room where officers were viewing the images. These issues were discovered during the audit and were addressed by CATSA.

CATSA has also suggested a plan to observe passengers in the airport pre-boarding areas for suspicious behaviour. OPC expressed a number of concerns including the potential for inappropriate risk profiling based on characteristics such as race, ethnicity, age or gender.

The report also looked at various forms of biometric information such as fingerprints and facial images. Although the collection of biometric information can lead to highly reliable identification systems — certainly more reliable than paper systems — the collection and use of this information has also raised significant privacy concerns. While biometric information has the potential to bolster identification systems, it can also lead to privacy concerns regarding covert collection of data, cross-matching and unwanted secondary disclosure. To aid organizations looking to utilize biometric information, the OPC has prepared a primer that helps to identify the pros and cons of biometric data systems.

Also addressed in the report was a complaint made by an individual who was asked by Canada Post to provide identification in order to terminate the rental of a postal box. After review, OPC found that Canada Post has a statutory obligation to provide a secure postal service and that the collection of personal information was consistent with that mandate. The purpose of the data collection was to ensure that postal boxes were not being used or closed fraudulently and further to aid in the investigation of illegal goods shipments. OPC determined that the collection of data for these purposes was reasonable and that the complaint made was not well founded.

Privacy issues are often a balancing act between too much and too little. OPC’s annual report looks to identify areas of concern and make recommendations as to how to strike an appropriate balance. Governments require personal information to properly exercise their functions, however the question quickly becomes “how much collection and use is too much?” A complete copy of OPC’s Annual Report to Parliament is on OPC’s website at www.priv.gc.ca.

For the London Free Press – January 9, 2012 – Read this on Canoe

Here are some tech developments to look out for in 2012.

The proposed amendments to Pipeda, the Canadian federal-privacy legislation, will be passed. Several of the amendments are long overdue, and will give some practical relief to business, without any compromise to personal privacy.

The change with the most visible effect will be the requirement for a business that experiences certain privacy breaches to report the breach to the privacy commissioner or to the individuals whose information may have been compromised.

The federal anti-spam legislation expected to be in force in 2011 is still waiting for regulations to be passed before coming into force.

The draft regulations received a lot of criticism, and may be revised prior to the act coming into force. The act will be a compliance headache for many organizations, unless the regulations effectively narrow the broad definition of spam.

The act is intended to provide tools to stop what we all understand to be spam. But the act defines spam to include e-mails that many businesses or charities routinely send that the recipients probably would not consider to be spam.

The smartphone and tablet revolution will continue. Whether you are a fan of Apple, Android, or Windows Phone 7 (yes, Microsoft is still in the phone game with a new operating system that has been favourably reviewed), there will be new choices to buy. This always-connected, location-aware, augmented-reality world will lead to challenges to privacy, advertising and business models.

We will start to hear more about digital wallets and near-field communications (NFC). Our smartphones will eventually become our wallets and credit cards, allowing us to pay at stores like a tap-and-go card.

North America lags behind other parts of the world in near-field communications, but expect to see more phones with this ability on the market this year. There is some speculation there could be some near-field communications wallet promotion around the Olympic Summer Games in London, England.

The players in this field may extend beyond the traditional banks and credit-card companies. Companies such as Google and cellphone carriers are trying to get a part of this business. If we have choices, we need to watch to ensure we get the same protections for lost or compromised phones as we now get for lost cards.

Another buzzphrase we will hear more is “the Internet of things.” Sensor technology, and electronics in general, are becoming more pervasive and cheaper. So in addition to connecting to people and websites on the Internet, we will increasingly be able to connect to things such as our home thermostats and appliances. At the same time, voice control and gesture control will lead to new ways to interact with our devices.

For the London Free Press – December 12, 2011 – Read this on Canoe

If you are looking for a gift to buy someone who seems to have or want the latest tech products, here are some suggestions.

If they have an iPhone or iPad, get a gift card to the Apple app store. The recipient will be able to choose from a long list of items, ranging from music and apps to car mounts.

Many accessories are available for smartphones and tablets. For someone who is partial to classic arcade video games, such as Missile Command, ThinkGeek sells the iCade Arcade Cabinet that turns an iPad into a table top arcade game complete with joystick and buttons.

For the musically inclined, an external microphone to use with the GarageBand iPad app might be appreciated. Or an Amplitude iRig to plug a guitar into an iPad or iPhone to turn it into a mobile amplifier/effects studio.

Smartphone cameras are getting so good that they can replace point and shoot cameras. Adapters are available, such as the Glif for an iPhone, that will mount a smartphone to a tripod just like a real camera.

Some day using your cell phone as your credit card will seem as normal as using a debit card today. Smartphones are becoming equipped with technology called near-field communications, or NFC, that will allow the phone to act as a digital wallet. All one has to do is to hold the phone near a card reader. NFC and digital wallets have been in trials for several years.

But we don’t have to wait for NFC. You can, for example, get a Starbucks gift card that can be used by a smartphone app to pay for your Starbucks purchase.

Smartphones and tablets are all controlled by touch. The screens are capacitive, meaning that your fingers have to actually touch the screen to work it. That’s fine until you want to use it with gloves on in the cold. But there is a solution to that. You can buy gloves made with conductive fibres that work with touch screens. Or Twittens brand gloves that let you expose you thumb and forefinger to operate a phone or camera.

If you are buying for the adventurous sort, consider a GoPro HD Hero video camera. It comes with mounts to attach it to a helmet, wing, surfboard, bike or pretty much anything.

High-definition video content is available online from various sources, or might reside in files on one’s computer. Much better, though, to watch it on a big screen TV than a small computer screen.

There are many ways to stream content to a TV from Internet-based services or a computer. Depending on what the individual’s technology of choice is, options include Apple TV, Roku (which you may have to import from the U.S. until sometime in 2012), or even an Xbox. Some Blu-Ray players also include this ability.

If price is no object, check out the “Expensive Gifts” category at blastr.com. The rocket belt, or the working TRON light cycle would no doubt be appreciated.

For the London Free Press – November 28, 2011 – Read this on Canoe

Social media blurs the lines between the personal and work life of employees, and employers are faced with the difficult task of regulating its use in and out of the workplace.

Social media can be beneficial for a business. It can be used for advertising, marketing, networking and keeping in touch with customers. On the other hand, it can be detrimental to a business if employees use social media to criticize their employers, customers or the products they sell.

Over a year ago, a Best Buy employee in Missouri was almost fired for making a video that portrayed an electronics store employee trying to convince someone to buy a phone other than an iPhone.

The video didn’t identify Best Buy, but the employee was suspended and almost fired because Best Buy found the video was “openly disparaging of our employees, our customers and our vendor partners.”

In September, a Starbucks barista from California was fired after he made a video of himself singing. In the song, called The Starbucks Rant Song, he makes fun of customers, products and the company.

Three months after it was posted on YouTube, Starbucks found out about it and fired him. Even though the barista said the video was just an attempt at satire, his lyrics were certainly a criticism of his employer.

In these two situations, both videos were made outside of the workplace. The question is whether they cross a line that allows an employer to do something about it.

The American National Labor Relations Board released a report on the outcome of investigations into cases involving use of social media. The board took the position regardless of whether there is a social media policy, an employer “can’t discipline employees who discuss workplace responsibilities and performance together online, even if the online conversation includes swearing or insults.”

It also states if a business does have a policy, they should “make sure it does not try to control what employees can say and cannot say about the company. If it does, you can be in trouble with the NLRB.”

That perspective rings true in Canada as well. But that’s not to say employees have free reign to say whatever they want on personal social media channels. If an employee discloses an employer’s confidential information in a tweet, the employer would have cause for concern no different than if the employee said it in a work e-mail.

But if the employee is criticizing his or her employer, or stating a personal opinion that might be different than management’s — the employer’s best response may be to do nothing.

A good way to reduce chances of misuse of social media is to have a social media policy that sets expectations. A tool to create a social media policy can be found at policytool.net.