David Canton – for the London Free Press – February 24th, 2007

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Things are heating up in the world of online gambling. Most of the action, however, is taking place far away from the poker tables of cyberspace.

In January, the World Trade Organization (WTO) released a report in a dispute between the Caribbean nation of Antigua and Barbuda and the United States. The Antiguans first brought its case to the WTO in 2003, stating U.S. laws restricting internet gambling were in violation WTO free-trade commitments. Online gambling has provided a substantial source of income for companies based in places such as Antigua.

In April 2005, the WTO ruled against U.S. regulations on internet horse-race betting, stating U.S. rules discriminated against foreign companies. The Antiguans saw this decision as a victory, although the Americans have done little to comply. In July 2006, the Antiguans asked the WTO to investigate the issue further and decide whether U.S. restrictions on online gambling comply with international trade rules.

Although the panel’s January preliminary ruling has remained confidential, the U.S. Trade representative’s office has acknowledged the decision goes against the Americans. A final report is to be made public in March.

The American restrictions may be challenged by the European Union. As EU Internal Market Commissioner Charlie McCreevy told the European Parliament in January, “In my view it is probably a restrictive practice and we might take it up in another (forum).” McCreevy sees U.S. actions as a potential attempt to protect its gambling industry from foreign competition.

What has countries such as Antigua and Barbuda up in arms are aggressive American attempts to crack down on their revenue from online gambling.

A few notable arrests have been made. In July 2006, the British chief executive of Costa Rican-based BetonSports, David Carruthers, was detained at an airport in Dallas while making a stop-over between the U.K. and Costa Rica. Also, in January, subpoenas were issued against four Wall Street investment banks that had done business with offshore gaming companies. The Justice Department also has threatened to go after advertising executives whose companies do business with such casinos. The thought is, if enforcement against the gaming companies should prove fruitless, the next best step is to go after their American business partners.

If these companies are situated in countries where online betting is allowed and whose laws they abide by, how can the U.S. government enforce its rules upon them? Evidently, the US authorities are not concerned about that.

People often do not recognize how valuable a domain name is to their business. The selection, care and feeding of a domain name is indeed an important task.

For example, some small businesses use as their email address name@[insert random ISP or email provider here].com. For one thing, people may wonder how real your business is if you use that kind of address. For another, you are at the whim of the service provider if they choose to alter or stop their service using that name – which means your published email address no longer works. (I’ve seen that happen)

Domain names are cheap – so get one as close as possible to your business name. That way you control your own domain, and create a better image for yourself.

Turns out that the data compromise started as early as June 2005, and involved transaction details as early as 2003. Leaked data included drivers license info for people making returns.

One of the many lessons here is that one should not collect or keep data they really don’t need. The starting position should be that nothing is collected in the first place without a supportable need. Business must take a cold, hard look at the info they collect and keep, and ask why they need it.

Take drivers license info on returns, for example. Canadian privacy decisions have said that its OK to ask for a drivers license when someone returns an item as a fraud prevention measure – but its not OK to record that info. After all, once the clerk decides that the person returning the item is who they say they are, what’s the point of recording the license details? The Alberta privacy commissioner did a good analysis of the issue.

Another example is credit and debit card information. Once a transaction is approved by the debit/credit card company – why would one keep any details about the card or cardholder?

Read about the latest TJX revelation on The Canadian Privacy law blog

Read Techdirt’s spin

Read an earlier article of mine on the Alberta license & return issue

Read the Alberta decision

This is not a new issue, but since a couple of my clients have received scam invoices lately, I thought it was worth mentioning.

All trade-marks are published by the trade-marks office before being granted to give an opportunity to others to oppose the mark if they feel they have prior rights.

It is not unusual for a business to get what appears to be an invoice for a trade-marks publication shortly after their trade-mark is published. Those invoices are not real – or at best is a solicitation for an overpriced listing in an unnecessary publication.

In general, any invoice that does not come from your trade-mark agent is suspect.

These scam invoices are so common that the Canadian trade-marks office has a warning about them on every trade-mark approval notice it sends.

David Canton – for the London Free Press – February 17, 2007

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In 2007, daylight time starts the second Sunday in March instead of the first Sunday in April and ends the first Sunday in November, instead of the last Sunday in October.

This change may wreak havoc on systems and equipment. For homes, its more of a nuisance issue than anything, such as mis-timed answering machines or light timers, and VCR’s or PVR’s that may record at the wrong time.

It is more critical for business, especially where accurate time is necessary for things like financial transactions, security systems, travel schedules, and appointment calendars. Businesses should plan ahead to ensure a smooth transition, rather than leaving it to chance.

Daylight time has been in practice since the early 1900’s. The “spring ahead, fall back” trend is observed by most countries whose seasons change. The idea behind daylight time is that shifting an hour of daylight from early morning to evening reduces electricity consumption by better matching waking time with daylight hours.

The U.S. Government looked at the benefits of conserving energy and daylight time and decided to extend daylight time by four weeks. Canada decided to follow suit.

While many have been quick to recognize the potential benefit of energy conservation, many failed to recognize the potential Y2K-like problems that could occur with the technology we use in our home and businesses.

Equipment that tracks time often has intelligence embedded within to automatically change to and from daylight time. With the change the decisions will reflect the wrong time.

We often forget how much technology knows what time it is. Clocks and timers are obvious, but we can’t forget things like fax machines, photocopiers, security systems, and heating equipment.

Australia experienced a similar change to their daylight time when they had a temporary change during the XVIII Commonwealth Games to prevent reverting back to standard time. Businesses found their calendars and security logs off by one hour. Automatic transactions and events such as end of the day calculations and procedures that were to run at midnight did not occur at the correct time.

Steps to lessen the risk of mistiming include ensuring operating systems on computers are up to date with the latest updates or patches before March 11, and checking with vendors of critical systems to ensure they have been taken care of.

Check on the first day of daylight time to ensure the times are right on equipment that knows what time it is. Don’t forget to check again on the old change date to make sure nothing changes then by itself. And don’t forget to check again in the fall on both the old and new change dates.

Anyone having anything to do with computer tech support will find this video amusing. Thanks to Slaw and Ernie the Attorney for posting it.

Watch “Introducing the book”

3GSM is an event where the major cell phone manufacturers show their latest wares. Take a look at the engadget mobile site to see details, and look at all the latest and greatest phones. (Disclaimer – don’t blame me if you get frustrated seeing phones that you want – but won’t be available for a while.)

One significant announcement was Windows mobile 6. From the reports I have seen – it fixes some of the nits in Windows mobile 5 and integrates Office rather well.

So – note to Rogers Wireless – forget bringing out a Windows mobile 5 phone – and go right to 6. One of the newer ones shown at 3GSM would be nice (a keyboard is crucial – think Blackjack or better). And my contract on my existing smartphone is almost over – so within the next couple of months?

Look at engadget mobile 3GSM coverage

Digitization and the Internet continue to challenge business models, and as often happens with disruptive technology, it takes a long time for people to come to grips with all its ramifications.

Just over the past few days:

A Brussels Court ruled Google violated copyright laws by publishing links to Belgian newspapers without permission and ordered the company to remove them. Frankly, I don’t understand why a newspaper would not want a search engine to link to them. Don’t they want to be found?

Read more in the LawDay newsletter

Canadian Heritage (ie the Canadian government) released a report on the future of the Canadian music industry. It takes a candid tour of the history of music technology, and where it might be headed, and what models might work. DRM is not an option it supports.

Read Michael Geist’s summary and take a look at the report

Microsoft announced a new DRM for mobile devices called “PlayReady”

Read a TechTree article about PlayReady

The Canadian Private Copying Collective, which administers the private copying levy, has asked the Copyright Board to increase the levy on blank CDs and add levies to memory cards and digital audio players. If the proposal was adopted, it would add a substantial cost to MP3 palyers lke the iPod, and to the storage cards we buy for cameras and other devices.

Read part 1 of Michael Geist’s thoughts on this

Read part 2 of Michael Geist’s thoughts on this

David Canton – for the London Free Press – February 13, 2007

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Businesses invest huge amounts of money and effort into branding, and usually protect that investment and goodwill by registering trade-marks for its brands. But a business can lose all its rights to its trade-mark registration if it doesn’t “use” the trade-mark as defined by law.

Trade-marks might be a logo, such as the Ford blue oval; a product name such as Dell; or a phrase such as Microsoft’s “Where do you want to go today.” Trade-mark legislation and court interpretations have defined “use” over the years to mean the use of the trade-mark precisely as it has been registered to provide the wares and services described in the trade-mark registration.

The law defines “use” for trade-mark purposes much more narrowly than one might think. For example, putting your logo on your building, while certainly a good thing to do, is not considered use for trade-mark purposes.

It is important to use the trade-mark on the product or its packaging if they are goods, and for services when the services are provided or advertised.

One common mistake — especially for design marks or logos — is to make changes to the mark without considering whether a new trade-mark application is required to protect the mark. It does not take much of a change to be considered a different mark and therefore not protected by the original registration.

A common mistake for word marks is to use the mark in a way that does not set the registered mark apart from other words around it. For example, if your trade-mark is the word “widget,” the word “widget” should appear in a different font, a different size, in bold type or some other way to make it clear it stands apart from the words around it.

It is common to see corporate names with Inc., Corp. or Ltd. in smaller letters or in a logo underneath the main portion of the name in some other font or design. That’s done in part to emphasize the part of the corporate name the business wants to be prominent, and also serves to protect trade-mark rights if that part of the corporate name is used as a brand.

Another risky proposition is to combine a registered mark with other marks – whether registered or unregistered. Courts have said a registered mark that is not used on its own, but is always used with other material, has not been used and therefore is not protected. It’s unfortunate when trade-mark rights are lost, or time and money have to be spent to try to defend one’s trade-marks because they were not used properly.

Businesses should consult with trade-mark counsel from time to time to ensure their mark uses and rights are preserved. More details about proper trade-mark use are available on my blog at www.canton.elegal.ca.

Steve Job’s anti-drm essay has received a lot of attention over the last few days. Is this the beginning of the end for DRM? Lets hope the Canadian legislators are paying attention to this in connection with the copyright reform bill thats in the works.

For those who have not seen it – he published an essay concluding that Apple would prefer to be able to sell music withut DRM.

Essentially he said the reason Apple had to put DRM on its iTunes songs to limit consumer use was that the record companies demanded it. Without it, they would not provide iTunes with the songs.

There has been much speculation as to why Apple is now saying this. One motivator will be the decision in Norway saying that Apple’s DRM is illegal as it prevents interoperability. This is Apple’s way of saying to Norway that its not Apple’s fault – they are the victim. Other suggested motivators are a negotiating tactic with the labels for a new deal for iPhone downloads, and a ploy for publicity.

Whatever the motivators, its another example of Steve Job’s ability to get publicity and position Apple as a friend of the consumer – sometimes referred to as his “reality distortion field”. He has sensed that the planets are aligning on this issue – ranging from the Norway decision, the growing awareness of drm in the public, the growing anti-drm movement, and a growing number of smaller labels offering music without drm.

And there is evidence that the approach may be working – or at least has been timed to appear it is working (which from a publicity perspective is just as good for Apple). Michael Geist points out this morning that several news sources are reporting that EMI, one of the 4 major labels, is considering allowing the sale of drm free mp3′s.

And the RIAA’s response was amusing (talk about a reality distortion field). The essay discussed and rejected the possibility of Apple licensing its Fairplay drm software. The RIAA responded by saying that Apple’s offer to license Fairplay was a welcome breakthough.

Read Steve Job’s essay

Read an article in the Register about the Norway issue

Read Michael’s post about EMI

Read an engadget post about the RIAA response