David Canton – For the London Free Press – March 18, 2006

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Jaguar Cars Ltd.’s rights to the Jaguar trademark were recently debated in the Canadian Federal Court.

Jaguar is recognized worldwide for luxury cars, but it also has a line of personal items – such as luggage and wallets. The high-end products are available at Jaguar dealerships and marketed directly to Jaguar car buyers.

You could also find tote bags, backpacks and luggage bearing the name Jaguar at lower-end stores in Canada. Remo Imports Ltd. registered Jaguar as a trademark for use on these products in the early ’80s.

The 14-year court battle began in 1991 when Remo sued Jaguar Cars to stop it from using the name on luggage.

Remo is no longer allowed to use the name Jaguar for its products. The fact that it was natural for a car company to expand into travel accessories was a strong factor in the decision. Luxury car manufacturers often use this approach to market their products, including branding everything from suitcases to sunglasses.

Significant in the decision was the possibility of consumers confusing the Jaguar Cars brand name with Remo Imports products.

Traditionally, Canadian law has not offered significant protection for famous marks beyond the actual wares and services listed on their trademark registrations.

But the court recognized a famous brand such as Jaguar could suffer from the mere use of its name. Companies spend many years and significant amounts of money developing the goodwill attached to their trademarks.

Goodwill is the reputation connected to a business or product that is communicated by a trademark. Jaguar tries to develop and maintain a corporate image of luxury, affluence and status. Jaguar sells cars, but it also sells a lifestyle.

The court decision affords broader protection to the goodwill of particularly well-known trademarks such as Jaguar. Any use of a recognizable name or mark by a new, or “junior,” user can damage the original, or “senior,” user, even if it isn’t competing in the same field of business.

The use of a famous mark by a junior user can unintentionally deceive consumers. The junior user will have the benefit of the goodwill of the mark without having to work for it.

The court recognized that the use of a famous trademark decreases the distinctiveness of the brand. The loss of exclusion over the mark dilutes the impact of having a unique and recognizable selling tool.

Where consumers believe there is a relationship between the senior user and junior user, there is a risk of harm to the reputation that the senior has carefully crafted. The potential exists that inferior products would damage the senior user’s reputation, even though it doesn’t have anything to do with their manufacture.

The fact that Jaguar had been around internationally for 60 years helped its case. The more famous and historic the brand, the more protection the company will be afforded. A study cited in the decision listed Jaguar Cars as the 17th most well-known brand in the world – and that is an investment well worth protecting.

This case is not the last word on this subject. The Supreme Court of Canada will rule soon in the Barbie’s case, where a restaurant owner tried to register Barbie’s as a trademark for his restaurant. Mattel, the owners of the Barbie’s trademark for dolls, launched an action claiming its rights to the name prevents the restaurant use. The restaurant says it’s simply slang for barbecue.

The Supreme Court may or may not agree with the rationale behind the Jaguar decision, so its use as a precedent remains to be seen.

An article from the UK claims that the UK government has threatened to cancel its order from the US for the Joint Strike Fighter if it does not obtain the source code for the plane’s software.

Apparently they are concerned that the US could disable the planes though the software.

Its not unusual for software purchasers to want source code to be escrowed with a third party in case the vendor becomes insolvent, or to include representations in licenses that there are no disabling codes in software.

Vendors generally guard their source code for competitive reasons – add national security in this case. The UK understandably wants to be in control of its own planes. The US may be reluctant to divulge this as they lose control of the software.

Read the vnunet.com article

A couple of interesting privacy matters.

First, the former Canadian privacy commissioner, George Radwanski, has been charged with fraud and criminal breach of trust. He resigned in 2003 after the Auditor General raised allegations of misspending and other behaviour inconsistent with his position.

David Fraser’s blog has links to articles with more detail.

Second, Slashdot has a post telling about a person who, as an experiment, tore a credit card application he got in the mail into little pieces, changed his address to his parents address, put his cell # on the app, and submitted it. Take a look at the link on the Slashdot post to see photos of the actual application.

Sure enough, a credit card arrived shortly.

Truly bizarre that a taped together application, especially with altered information, would be accepted.

2 lessons from that. No business should accept that kind of application. And everyone should invest in a cross-cut shredder. Shred absolutely everything you dispose that contains your name or any kind of personal information.

Read David Fraser’s post on Radwanski charges

Read the Slashdot post about the torn app

David Fraser has a post that refers to a CBC article about thousands of people in various countries being investigated for child porn violations. The accusations originated from credit card information used to access child porn from a Texas website.

The problem is that many of the cards used were stolen. Then various police forces just assumed guilt on the part of the original card owner, without investigating further. Many people were falsely accused, and even charged, leading to lost jobs, tarnished reputations, and even suicide.

As David puts it: Having your credit destroyed is bad enough, but getting dragged into something like this is off the charts

Read David’s post

There has been a lot written lately about the need for net neutrality. For anyone interested in more than my newspaper column from Saturday that was posted yesterday, take a look at these.

Techdirt: Why Do Broadband Providers Always Sound Like Gangsters Selling Protection?

Techdirt: Net Neutrality Equals Theft?

Techdirt: Network Neutrality And Natural Monopolies

Digg: Cable Companies: We’ll Kill VoIP

Michael Geist: Vonage Requests CRTC Investigation Into Shaw VoIP Charges

David Canton – For the London Free Press – March 11, 2006

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Internet service providers (ISPs) have been considering a new approach to their service, one that may result in a fundamental shift in how we pay for Internet access and the quality of service we receive.

The concept revolves around “traffic shaping” or the two-tiered Internet. It is of significant concern because it is counter to the concept of network neutrality, where all data over the Internet is treated equally.

The premise is this. ISPs provide users with access to the Internet. Think of it as providing the “pipe.” Users pay the ISP a monthly fee for that and may pay additional fees to their ISP or others for particular services coming through the pipe, such as VoIP phone service.

Traffic shaping is about prioritizing certain traffic over the Internet. It can be used for quality of service or to impair certain traffic.

For example, an ISP might use it to make their own VoIP service work well, but degrade the performance of other VoIP providers. Or they might use it in an attempt to control what they view as bandwidth hogs or illegal activity, such as file downloading.

Several telecom firms have complained businesses such as Google and Vonage use their networks for free and want to charge them more than under the traditional model.

One commentator likened this to an airline charging Time Warner every time a passenger brings their own copy of Time magazine on an airplane.

Some ISPs say third-party providers of content, information or services accessed over the Internet have two choices. If they pay additional fees, their traffic gets priority. If they don’t, users may get reduced performance.

That means traffic shaping will cross the line from Internet management that ensures quality and neutral service to fundamentally affecting the quality of third-party service.

This approach has been severely criticized. Critics call for network neutrality. Concern has been so great, it resulted in U.S. Senate hearings on the matter and proposed U.S. legislation.

Some are concerned the lack of network neutrality will stifle the development of Internet technology.

The argument is that the company that pays the ISP will receive the best access to users, meaning any competitors who don’t pay the ISP will receive lower-quality access to users.

Thus, the ISP and not users will decide which company offers the best service. The ISP interests then shift from providing the best service to the user in a competitive market to satisfying the interests of companies willing to pay for enhanced service.

In addition to altering the competitive playing field between independent providers of the same service, it allows an ISP an advantage for any service it wants to provide, as it can ensure it works better than other services.

We should pay the ISP for the data pipe coming into our homes as a service on its own, as we do now.

Whatever data we consume or create over that pipe (including voice and video), may or may not come from the same ISP. ISP’s should compete for those data services on their own merits – not by tinkering with the pipe.

The concept of network neutrality is important to the continued use of the Internet as we know it, and a level playing field for service providers of all kinds.

Digg points to an MSNBC article that says there has been a rash of debit card fraud in the US. Debit cards have been relatively secure, as they are not useful without the PIN code. Thieves have resorted to things like modifying card readers, and cameras to capture pins.

This report is disturbing as it suggests the fraudsters have obtained pins in bulk, and that the probable source is retailer records. Most assumed that when one inputs their pin it is transmitted to the bank for verification, but is not stored anywhere but the bank.

Turns out some retailer systems do store the pin!! The retailers may not even know that happens.

I don’t know if this happens at Canadian retailers or not.

This is a practice that must be stopped immediately.

In addition to being a security risk, it is probably a violation of the PIPEDA privacy legislation, as sensitive personal information is being stored that is not necessary to have, and without knowledge or consent.

Read the MSNBC article

As was expected, this is essentially a mini-tablet computer. Microsoft now has an official page on it, and the tech press has several articles.

One interesting development is a virtual thumb keyboard that occupies 2 semi-circular bottom corners.

Initial reactions are mixed – but this might be a winner. It would be a great device for work to take to meetings. More functional than a pda – smaller and less obtrusive than a laptop. And a great device for home as well.

The only caveat might be pricing and timing. While the initial devices look good, I have not seen anything on price yet. And it sounds like it will be a while before the devices with the best combination of power, battery life, size, and price will be available.

Look at the Microsoft page

Read an engadget post

Read a Gizmodo post

Techstuff in Plain Language refers to a Reuters study that says 1/2 of faulty product returns are merely because the users can’t figure out how to use them.

One of the troubling comments is that some manufacturers dismiss those as simply nuisance returns, and don’t consider that it may be a design or instruction issue.

Read the Techstuff post

The tech press is starting to muse over what this will mean in the long run. Thoughts include:

It will encourage patent trolls who have no intention to use the patents they have to sue.

It will lead to patent reform to lessen the chances that improper patents will be issued in the first place.

It will fuel the discussion for a fundamental review of the purpose behind patents.

Despite the huge cost to RIM in the settlement, they couldn’t ask for more publicity.

It has alerted the marketplace that there are alternatives to RIM.

Read a Wireless News article quoting Info-Tech Research Group

Read an ITBusiness.ca article

Read an ITBusiness.ca editorial