Boing Boing posted a remix challenge to mock the new anti-terror posters I mentioned a few days ago.

Some of them are quite good – definitely worth a look.

For the London Free Press – March 30, 2009

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Virtual reality was taken to a new level recently when famous guitar manufacturer, Gibson, sued Activision Publishing, Inc., creators of Guitar Hero, alleging that the video game system infringed upon one of its patents.

Specifically, Gibson Guitar Corp. registered U.S. Patent No. 5,990,405 in 1999. This patent covered,”a system and method for generating and controlling a simulated musical concert experience.”

In 2006, Gibson licensed to Activision certain Gibson trademarks for use within the Guitar Hero game.

In January 2008, Activision received a letter from Gibson stating that though the game maker had permission to use Gibson’s trademark, it did not have permission to use Gibson’s patent for simulated musical performances. The letter requested that “Activision obtain a licence under Gibson’s 405 patent or halt sales of any version of the Guitar Hero game software . . . and . . . instrument controllers.”

Activision instead filed a pre-emptive request with the court for a declaration that its top-selling video game did not infringe on Gibson’s patent. Gibson responded to Activision by filing a suit of its own.

In Activision Publishing Inc. vs Gibson Guitar Corp., decided Feb. 26, 2009, the California District Court dismissed the lawsuit and held that Activision had not infringed upon Gibson’s patent. The court made its opinion of the case clear when it held that the allegations brought forth by Gibson, “border on the frivolous.”

Throughout the case, Gibson tried to argue that their patent was infringed and even went as far as to say that, “the ‘405 Patent covers any system where a user controls something ‘musical’ with any device.”

The court rejected the argument stating that, “by arguing that any sound made by any controller can potentially be musical, Gibson would have everything in the world — from the buttons of a DVD remote, to a pencil tapping a table — be an ‘actual musical instrument’ within the ‘405 Patent.”

Ultimately, the court refused to give the term “musical instrument” such a broad interpretation and instead held that, “no reasonable person of ordinary skill in the relevant arts would interpret the ‘405 Patent as covering interactive video games.”

The motivation for the lawsuit may be found in the pre-existing relationship between Gibson and Activision. Industry insiders have suggested that Activision’s decision not to renew the Gibson trademark licence was the motivating factor behind the lawsuit.

In fact, Activision itself, in a letter dated Match 10, 2008, suggested that, “Gibson knew about the Guitar Hero games for nearly three years, but did not raise its patent until it became clear that Activision was not interested in renewing the Licenses and Marketing Support Agreement.”

Whatever the motivation, the California District Court made it clear that the lawsuit was without merit. This decision has now put into question several other outstanding lawsuits Gibson had also commenced against various companies involved in the creation and distribution of Guitar Hero, such as MTV, Harmonix, Electronic Arts, Wal-Mart, Target and K-mart.

Check out davidcanton.tel for my first attempt at providing my contact information.

I’ve written about this before here and here.  .tel has the potential to become a universal phone book  – but its success depends on wide adoption. 

.tel addresses are available from various name registrars.   I used webnames.ca - their site has plety of information about .tel and how to use it.

Thats the title of my Slaw post for today.   It reads:

Cory Doctorow writes on Boing Boing about the latest anti-terrorist campaign in England.

His entire post is a worthwhile read – but to get a flavour of it:

The London police have bested their own impressive record for insane and stupid anti-terrorism posters with a new range of signs advising Londoners to go through each others’ trash-bins looking for “suspicious” chemical bottles, and to report on one another for “studying CCTV cameras.”

Essentially, this redefines “suspicious” as anything outside of the direct experience of the most frightened, ignorant and foolish people in any neighborhood.

So in addition to being suspected of being a terrorist if you take a photograph of a police officer, or of a public facility, or of a surveillance camera, you are a suspect if you even look at a surveillance camera!

London’s Ponder Games has released Pufu’s Spiral: Adventures Around the World, a video game with an environmental theme.

It can be downloaded at Bigfish Games, where it is described as:

Pufu the penguin is tired of all the snow that surrounds his home, and longs for something different. Help him explore new climates, and the world, in this Match 3 adventure. Use powerful abilities to help you on your journey and help Pufu make some colorful new friends, and learn some valuable lessons about life.

Take a look at the Ponder Games website.

Congratulations Dylan.

For the London Free Press – March 23, 2009

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People often think of adopting trade-marks that describe their product or service. But that results in a weak trade-mark and is not allowed under the Trade-marks Act.

A trade-mark is used to distinguish one company’s products or services from those of another. To achieve that, the Act doesn’t allow registration of a trade-mark that describes the character or quality of the product or service or its place of origin. For example, McDonald’s can register a trade-mark such as “Big Mac”, but can’t register “double cheeseburger.”

Trade-marks that pass the threshold in the Act, but are still somewhat descriptive, are considered weak marks as they don’t do a good job of distinguishing the products of one business from another.

The rule against descriptive trade-marks is illustrated in the recent Federal Court of Appeal decision of Shell Canada Ltd. vs. P.T. Sari Incofood Corp. In this case, Shell challenged the registration of the proposed trade-mark, “JAVACAFE.”

The Indonesian company P.T. Sari wanted to use JAVACAFE in connection with its coffee-related wares, including coffee powder, cooked coffee beans, instant coffee, freeze-dried coffee and granular coffee.

In analyzing JAVACAFE, the Court of Appeal separated the proposed trade-mark into “java” and “cafe”.

It agreed with Shell that “cafe” means “coffee” in French, or that the average French-speaking Canadian would immediately assign that meaning when the word appeared in a trade-mark associated with coffee products.

In considering “java” the court found the word to be defined in the French language as a popular dance, but that it was also understood to be an island known for its coffee production.

To determine whether a proposed trade-mark is too descriptive or whether consumers would be confused by the mark, a court will consider the dictionary meaning of the words. Courts will also consider other evidence such as consumer surveys or even the number of other trade-marks that contain the same word or words.

In conclusion, the Court of Appeal stated that “the trade-mark JAVACAFE is not distinctive of P.T. Sari’s coffee products from the coffee products of others given that it is clearly descriptive of the character, quality or place of origin of the wares with which its association is opposed.”

Since JAVACAFE did not meet the criteria in French, it was not necessary to consider whether the proposed mark was clearly descriptive in the English language.

The ruling on JAVACAFE also highlights the importance of considering a proposed trade-mark’s meaning in different languages.

In Canada, this consideration is limited to English and French. However, for people who wish to use a trade-mark internationally — either now or in the future — it is prudent to consider the mark’s meaning in other languages because many nations have similar trademark law.

This consideration is especially important given today’s global economy and the prevalence of international sales via the Internet.

So when considering what trade-mark to adopt for your products, avoid weak, descriptive marks. Strong, distinctive trade-marks must be memorable, not descriptive.

Michael has a must read post entitled  Tell Me Lies  that is the text of his remarks at a copyright conference yesterday.

He starts with a quote from a recent article by Clay Shirky ( another must read) on the future of newspapers that says:

“When someone demands to know how we are going to replace newspapers, they are really demanding to be told that we are not living through a revolution. They are demanding to be told that old systems won’t break before new systems are in place. They are demanding to be told that ancient social bargains aren’t in peril, that core institutions will be spared, that new methods of spreading information will improve previous practice rather than upending it. They are demanding to be lied to.”

Michael goes on to relate the last sentence to copyright issues, giving 8 examples where over the last few years we have been demanding to be lied to about copyright issues. 

Basically, as Michael Wesch said a couple of years ago in his video Web 2.0 … The Machine is Us/ing Us – copyright is one of those things that we must rethink.

That’s the title of my Slaw post for today.   It reads as follows:

The big tech news yesterday was Apple’s preview of the new iPhone 3.0 software that is available now for developers, and this summer as a free upgrade for iPhone users.

The Apple mystique and reality distortion field continue despite Steve Jobs’ absence from the podium. There is no question that the iPhone sets the bar for smartphones, even though many of the new features announced yesterday are already available on other phones.

Details can be found on almost any tech site – but given Slaw’s audience, take a look at iPhone J.D.’s article entitled Why lawyers will love iPhone Software 3.0. The first iPhone was not deemed worthy for business use, but that is no longer the case. I’ve always tried to resist joining the Apple cult – basing my choices on logic and price – but it is quite tempting to give into the dark side with iPhone 3.0.

Microsoft was ahead of the game a couple of years ago, but is now playing catch up – working on Windows Mobile 6.5, and 7. RIM is certainly in the game with its Bold and Storm. Then there is the Google Android OS, and Palm’s Pre.

Personally, I’m in a conundrum. The term on my Windows Mobile smartphone is up in May, and I “need” to upgrade to 3G and something more cutting edge. Perhaps I’ll wait and see what comes out this summer. There is some speculation that there will be new iPhone hardware to go along with the release of 3.0. HTC is supposed to release a new Touch Pro 2 in Q2 which I believe either ships with WM 6.5, or will be upgradeable to 6.5.

If anyone at Rogers is listening – please get the HTC Touch Pro 2 as soon as it is available – not months after the rest of the world, and provide the OS updates just as quickly.

For the London Free Press – March 16, 2009

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The Supreme Court of Canada recently rejected a lower court’s decision that you can’t enforce a contract that you’ve demonstrated no intention to comply with.

In Jedfro Investments (U.S.A.) Ltd. vs. Jacyk Estate, the top court actually upheld the outcome of the Ontario Court of Appeal’s decision, but on very different grounds. The Court of Appeal decision was the subject of a column published Nov. 3, 2006 (see canton.elegal.ca/2006/ 11/06/ignoring-written-deals-risky).

In the Jedfro case, three investors entered into a joint-venture agreement to purchase, develop and sell property in the United States.

The investors bought the property using cash and a promissory note. They intended to make payments on the promissory note by selling lots. But when the real estate market plummeted, the investors couldn’t meet their payment obligations, and the noteholder threatened to foreclose.

The joint-venture agreement contained provisions to deal with such a situation by providing a method for one party to buy any of the other parties out.

But instead of this occurring, one of the investors paid off the note on behalf of the other two, with no new agreement as to how he’d be compensated.

One of the other investors agreed to a profit-sharing deal to compensate the investor for paying off the promissory note.

The third investor, however, couldn’t come to terms about what he’d give the payer, so the plaintiff sued the payer of the note, arguing he had breached the original joint-venture agreement under which all were to share proportionally any profits of the joint venture.

The trial judge dismissed the action, holding that none of the parties had relied on the joint- venture agreement and it was therefore inappropriate for the court to force the parties to abide by its terms.

The Court of Appeal upheld the trial judge’s decision, saying that if parties ignore the terms of a deal, they can’t later enforce the ignored terms against the others.

Essentially, the appeal court held that contracting parties can’t ignore an agreement when it doesn’t benefit them, then ask the court to enforce the same agreement when it does benefit them.

The matter was further appealed to the Supreme Court, which upheld the previous decisions but disagreed with the lower courts’ reasoning.

The top court held that there are many ways to discharge a contract, including by performance, agreement, frustration, or by repudiatory or fundamental breach. But unless a contract is discharged by one of these methods, it remains in force and the parties remain bound by it.

Specifically, the Supreme Court held that, “while the parties may have ignored the joint-venture agreement, the obligations under it remained in effect.”

This decision represents a significant effort by the Supreme Court to reel in previous case law and send a clear message that contracts will remain in force and binding on the parties until discharged.

In other words, simply ignoring a written contract will not make the agreement go away.

Tomorow, being March 14, or 3.14, is Pi Day.    (Lets face it, the Pi approximation days are a bit of a stretch).   Or to get more precise, Pi minute is 3.14159, or March 14 at 1:59 p.m. (Lets ignore the fact that it should be at 1:59 am.)

Take a look at Pi Day’s “official web site“, and the Pi Day events at the Exploratorium in San Fransisco, and how to celebrate Pi Day at WikiHow

And for good measure, this Pi Day would have been Albert Einsteins’ 130th birthday.