It doesn’t seem like its been this long, but I made my first blog entry 4 years ago tomorrow. 

My first entry was a Free Press article I wrote about the then new Canadian version of the Creative commons license.

for the London Free Press – October 27, 2008

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Many businesses rely on the branding of their products to increase profitability and secure a place in highly competitive markets.

A recent Federal Court, Trial Division, decision illustrates how important it is for a business to be able to prove it has used its trade-marks properly.

In Grapha-Holding AG versus Illinois Tool Works Inc., the court allowed an appeal of a decision of the Registrar of Trade-marks, and held that the registrar did not have sufficient evidence to find that the trade-mark in question had been in use. As a result, the trade-mark registration was expunged.

Companies go to great lengths to ensure their trade-marks are properly registered. However, once the trade-mark has been obtained, many businesses fail to appreciate the importance of using trade-marks properly and keeping evidence of that use.

The Trade-marks Act is based on trade-mark rights arising from use of the trade-mark. Proper ongoing use of the trade-mark is crucial to protecting the trademark. Failure to use the trade-mark as defined at law may lead to all rights associated with the trade-mark being lost.

A trade-mark must be used consistently and without alteration from the way it has been registered. When dealing with wares, the trade-mark must be on the goods themselves or its packaging. For services, the trade-mark must be used when the services are being delivered or advertised.

If the trade-mark is called into question, one must be able to provide evidence to prove it has been used as required by the Trade-marks Act.

The act provides a mechanism for anyone to start a proceeding to require a trade-mark registrant to prove they used the trade-mark within the last three years. If the registrant can’t provide the required proof, the mark is expunged.

It also may be necessary to prove use if a business challenges another entity’s right to use a mark that the business feels is confusing with its mark, or if someone else registers a domain name that is similar to the mark.

To be able to provide the required proof, samples should be kept of use of the trade-mark over time, along with precise details of when and how the trade-mark has been used.

Also record volumes of the product sold annually, and details such as the number of brochures printed and distributed containing the marks.

The more precise this information is, the better, and the more third-party proof (such as an invoice showing the number of brochures printed), the better.

Though this information is easy to collect and retain along the way, many businesses don’t, as they don’t understand its importance. If one fails to keep adequate records, the consequences to one’s trade-mark and brand can be significant.

Businesses invest a lot of money in their brands and the goodwill and recognition that goes along with it.

There’s too much at stake to risk losing the rights to a trade-mark just because the owner failed to keep adequate records of its use.

The steps required to maintain the protection of a registered trademark may be simple, but the consequences of failing to take these steps can be devastating.

Given that we have just held our federal election, and the US is about to have theirs, a post on Boing Boing today entitled How the win the nerd vote caught my eye.

It has 10 points:  Broadband everywhere, universal healthcare, no federal tax on Internet purchases, renewed commitment to education, renewed commitment to science, real changes to transportation, early voting by mail, revamping copyright, a better job from the patent office, and open government.

All in all not a bad start for any country, and perhaps a plan that would resonate with a lot of people.  Anyone want to convince existing politicians to adopt this plan? Or perhaps start a new political party? 

Australian IT reports on a survey that paints a grim picture of data breach problems in Australia.  I’m always a bit skeptical of survey results, especially when they are commissioned by an entity that’s trying to sell a product aimed at righting the wrongs shown in the survey.

Even so, it reinforces the point that protecting the security of information is more than just trying to keep out hackers.  Significant numbers of security breaches are caused by things like lost hardware, human error, and internal malfeasance. 

Security needs to be addressed at senior corporate and board levels to get a holistic view of the issues, and to have the clout to put the right protections and training in place to lower the risks.

For the London Free Press – October 20, 2008

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Agreements are often created using standard “boilerplate” wording.

A British court was recently critical of bad drafting and attacked the lawyers who let word processors do their thinking for them.

The High Court in the case of Oxonica and Neuftec was interpreting an agreement that licensed patented technology from one company to the other.

At issue was how much of the technology the agreement actually licensed. The court said word processors have made it much easier for contract drafters to create agreements that are ambiguous, error-filled or unclear of purpose.

The judge stated that the drafting “cause(d) me to believe that the draftsman was not very familiar with patent practice and terminology. It conveys an impression that he was not always clear in his own mind about what he was doing and, when not clear, allowed his word processor to do his thinking for him. Bits of legal phraseology have been lifted from I know not what precedents and (were) assembled in a strange way.”

Many common, standard clauses appear in most agreements. It’s quicker and easier to cut and paste, than to recreate an entire agreement clause by clause. It also lessens the chance of making errors in drafting those clauses and lends familiarity to typical clauses.

As the court pointed out, however, simply using boilerplate paragraphs without thinking about how or if they fit a particular agreement is dangerous.

The clear message from this case: If the person drafting the contract doesn’t understand precisely what they’re designing the contract to do, or doesn’t put their mind to the drafting of each clause, it’s unlikely that the contract will do what the parties want it to do.

Word processors have created an escape by letting drafters cut and paste phrases and expressions where it may be unnecessary or unwise to do so. At the time, it is the easy way around these difficulties, but it can be a dangerous or sloppy way to draft.

The British judge begs drafters to learn what the real intention of the agreement is, develop a familiarity with the subject area and its terminology, and adjust the language or create new language to fit the need. In the end, the result is an agreement that’s clearer, more precise, and probably shorter.

It’s easy to take standard language, templates, precedents or boilerplate, and put together an agreement. To create an agreement that properly reflects the arrangement, however, requires the drafter to understand and think about the situation, adjust the language to fit, or write new language.

In other words, the ability to tailor a standard or precedent agreement or clauses to fit the specific needs of a particular agreement is far more valuable than the standard agreement itself. A well-drafted document might take a bit of time and money to create, but a poorly-drafted document could potentially cost millions.

Michael notes that the CRTC has issued a notice detailing its upcoming hearings on broadcasting and new media, and asking for interested parties to participate.

The CRTC has essentially kept its hands off the Internet so far.  These hearings will consider whether that should continue, or whether the CRTC should regulate “broadcasting” over the Internet.  This will prove to be an interesting exercise. Anyone who has strong feelings about this should consider participating.

More background and detail is in the CRTC notice itself, in Michaels post, and in an earlier post of mine.

That’s the title of my weekly Slaw post for today. 

It reads as follows:

Lawyers often talk about how entrepreneurs should make their companies “investor ready”. This uses the term “investor” in the widest sense, meaning everything from a bank loan, to a VC investment, to the sale of the business to Google that allows the owner to retire early in luxury. By “ready” we mean being able to easily survive investor diligence without risk of losing the deal or diminishing the value – by having taken all the right steps and having the right documentation for such things as an up to date corporate minute book, trade-marks for brands, documenting IP ownership, proper employment agreements, privacy policies, etc.

Our harping on this sometimes falls on deaf ears. Perhaps the owner needs to focus on its product and sales (being investor ready after all means nothing if there is nothing to invest in), or doesn’t want to spend money on lawyers, or thinks it is important but not urgent.

I was one of three speakers last night talking about intellectual property issues at the TechAlliance Entrepreneur 1.0 course. All 3 of us mentioned this.

The best perspective came from Colin Macaulay – Director, Research and Development of Viron Therapeutics Inc. Its one we should keep in mind when talking to clients.

He said entrepreneurs should keep in mind that they themselves are investors in their own companies. They should be their own harshest critics and do their own diligence in order to maximize and protect that investment.

A person’s business is probably the biggest investment they have, so owners should be vigilant to do what is necessary to maximize the value of the business. In essence, a business owner is better off doing continuous diligence on their company as if they have a continuous exit strategy. It leads to better decisions and doucumentation along the way. While it may seem like a daunting task, it is in reality far easier and better in the long run to approach things this way than to have to scramble to try to pull everything together after the fact to meet a pressing need, or to try to deal with problems that others find.

A reminder of my recent post on Slaw and here that tomorrow is being promoted in Europe as a day of protest against surveillance.

Its no wonder that this is happening, especially in light of things like David Fraser posts about today, where cameras are being used in UK parks to catch litterers and pooper scooper violators.

I’ve commented before that this type of surveillance is mere security theatre, doesn’t really accomplish anything, and is offensive to the concepts of privacy and a free society.  Just take a look at this, or read the various posts under the privacy tag on my blog if you are in doubt.

That’s the title of my weekly Slaw post.

It is reproduced here:

That was the message delivered last night by Steve Spencer of Digital Fortress Corporation at the monthly Internetwork meeting.

He makes a good point. Many people think about disaster recovery when dealing with business continuity plans. That is the wrong focus, as recovering from a disaster has a huge cost in terms of lost customer service, idle staff time, and and hits to productivity and customer relations.

When it comes to IT infrastructure – ie the servers and systems that run a business – the better approach is to think about disaster prevention. In other words, consider the possible things that might go wrong, and take steps to prevent them from happening in the first place. That might include things like redundant hardware, auxillary power supplies, redundant internet connections, and ways to monitor all that to ensure that corrective action can be taken automatically or quickly.

For the London Free Press – October 6, 2008

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In a major victory for American consumers, the Washington state Supreme Court, following in the footsteps of Ontario consumer protection laws, has held AT&T cannot remove a consumer’s right to file a class-action lawsuit.

The court in McKee vs. AT&T Corp. held that under the particular facts at hand and where the laws of Washington state apply:

“AT&T’s Consumer Services Agreement is substantively unconscionable and therefore unenforceable to the extent that it purports to waive the right to class actions, require confidentiality, shorten the Washington Consumer Protection Act statute of limitations, and limit availability of attorney fees.”

This case arose over disputed charges that added up to little more than $2 a month. So why make such a big deal over such a small amount? Given the number of years AT&T has been in business and the number of cust-omers it serves, the potential impact of seemingly minimal overbilling is significant.

After attempts to resolve his billing issues failed, McKee decided to take on AT&T. He filed a class-action lawsuit, alleging violations of Washington’s Consumer Protection Act, as well as breach of contract and negligence. In response, AT&T tried to enforce an arbitration clause in its consumer services agreement that prohibited class actions.

Consumer services agreements, also known as end-user licence agreements (EULAs), are widely used in the service industry. Everything from phone services to software licences are subject to EULAs. They are usually not signed by consumers and the terms are set by the service providers. That’s not necessarily a bad thing. Commercial certainty depends on it.

The U.S. Court found that the arbitration clause in AT&T’s consumer service agreement removing a consumer’s right to file a class action was unconscionable and therefore unenforceable.

Ontario consumers enjoy similar protection from EULAs that purport to remove the right to commence class actions.

Ontario consumer protection laws prevent companies from enforcing such clauses. Under the Consumer Protection Act, 2002, “any term in a consumer agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid” if it prevents a consumer from bringing an action in court.

The Act also permits consumers to commence or become members of class actions relating to disputes arising from consumer agreements even if the agreement attempts to prevent such a measure.

So why is the right to file class actions such a big deal for consumers?

In cases where the violations are small, but a large number of consumers are affected, class actions may be the only way to redress wrongs effectively. Without the right to commence class actions, consumers may not be able to obtain effective legal representation.

The court also felt the EULA’s requirement to keep arbitration results secret “hampers plaintiffs in learning about potentially meritorious claims and serves no purpose other than to tilt the scales in favour of (the service provider).”