For the London Free Press – May 31, 2010

Read this on Canoe

You’ll have to act fast to protect your brand

The country of Colombia is making its .co domain names available to those with no connection to the South American country. 

Typically, country level domains (such as .ca in Canada) can only be obtained by people within that country, or having some connection to the country. 

However, the Colombian government has recognized that the letters “co” are recognized the world over to mean company and/or corporation and has decided to cash in. 

Colombia is not the first country to do this. 

Anyone can pick up a .to domain name (Tonga) or a .cc domain name (Cocos Islands). A big success story is .tv, which brings a big annual income to the small island nation of Tuvalu. 

It is expected that first-time domain purchasers or those who have had to settle for sub-par domain names in the past will be first customers in line for .co. 

So how do you go about getting a .co domain name? 

The plan starts with a comprehensive “sunrise” period for trademark holders, a “landrush” period for those interested in names of high commercial value and finally “general availability.” 

Global sunrise began on April 23 and continues through June 10. Trademark holders within valid jurisdictions can apply for exact match domain names. 

To apply for a domain name during sunrise, you need to submit evidence of ownership of a trademark of national effect from any country in the world. In other words, if you have a Canadian trademark for “widget”, and it is not already taken, you can get widget.co in priority to others. 

Landrush will be held from June 21 through July 10. Anyone can apply for a domain name during this time. Single applications will be awarded at the end of the landrush and matching applications will be resolved at auction. 

Finally, general availability will begin on July 20 on a first-come, first-served basis. 

Details are at http://www.cointernet.co/. 

The operators of .co are advertising strong rights protections for brand owners. More specifically, .co will implement many of the rights protection mechanisms proposed by ICANN’s implementation recommendation team to safeguard the rights of brand owners around the world. 

Some of the key rights protection mechanisms and other protections announced by the .co registry include: 

• An IP clearinghouse to help brand owners secure their brands in .co during the sunrise process in an efficient and effective manner. 
• A policy to rapidly take down domains in cases where phishing, pharming, malware or other significant criminal and/or security threats have been established, including serial cyber-squatting. 
• A list of specially protected marks offering added protection to leading brands that the global consulting firm of Deloitte has independently identified as having made significant efforts to protect and enforce their trademarks in the domain name space. 

It would be worthwhile considering whether a .co domain name might be useful for your business. If so, take advantage of the process to attempt to obtain it before someone else does.

PIPEDA, or the Personal Information & Electronic Documents Act is the Canadian privacy law that covers federally regulated entities, and provincially regulated entities in provinces like Ontario that don’t have their own privacy laws.

Bill C29 was introduced in Parliament this week that will make several amendments to PIPEDA.  Most of these amendments have been expected, and are welcome as they address issues that have arisen from the current legislation. 

The press release is here, and the bill here.

For example, expanding the business contact exemption to include an email address, and explicit provisions that deal with the diligence of and transfer of personal information for the sale, merger, etc of a business.

There are a couple of new parts that could use some clarity, though. 

Language that attempts to clarify what “lawful authority” is that allows one to release information to law enforcement doesn’t really seem to clarify what the threshold of proof is, or what to ask for.

It also contains language that requires notification of breaches in certain circumstances to both the privacy commissioner and the affected individuals.  The language has threshold tests – which on the surface are not as clear as they might be.   If this language stays, it may take a privacy commissioner decision and/or court decision to clarify the threshold.

More complete discussion of the PIPEDA amendments are on David Fraser’s blog.  See his overview, and his markup showing the changes.

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

The Canadian government introduced two important new bills yesterday. Bill C-29 amends PIPEDA – I’ll leave commentary on that to David Fraser.

Bill C-28 is the “Fighting Internet and Wireless Spam Act” or FISA.  It is essentially the same as the “Electronic Commerce Protection Act” that was proposed previously. Here is Industry Canada’s news release, and the bill itself.

It targets the sending of what we would typically call spam, or unwanted commercial email, as well as spyware and phishing.

From the news release:

The proposed FISA is intended to deter the most damaging and deceptive forms of spam, such as identity theft, phishing and spyware, from occurring in Canada and to help drive spammers out of Canada.

The proposed FISA legislation provides a comprehensive regulatory regime that uses economic disincentives to protect electronic commerce and is modelled on international best practices. To enforce the legislation, the bill would use the expertise, and expand the mandates, of the three enforcement agencies: the Canadian Radio-television and Telecommunications Commission, Competition Bureau Canada and the Office of the Privacy Commissioner of Canada.

Industry Canada will act as a national coordinating body to increase consumer and business awareness and education, to further coordinate work with the private sector and to conduct research and intelligence gathering.

The bill is quite long and detailed. Monetary penalties are significant ($1 million for individuals, $10 million for businesses). A private right of action will allow anyone to take civil action against violators.

The bill essentially defines spam as a commercial message sent via email, IM, phone, or similar method. Sending spam is prohibited unless the recipient has consented, and the message contains certain prescribed information identifying the sender and how to unsubscribe.

That definition is extremely broad, and would capture things no one would consider spam  – so it goes on to describe several exceptions, such as providing requested information, or warranty or product recall information, or where there is a specifically defined “existing business relationship”.

One thing I find interesting is that the volume of the messages does not seem to be important. In other words, 1 email or text message to 1 recipient can be considered spam.

One of the exceptions is a message “that is sent by or on behalf of an individual to another individual with whom they have a personal or family relationship, as defined in the regulations. “

The bill clearly applies to what we all call spam. Hopefully it will be an effective tool to help reduce spam that comes from Canada.

We can’t, though, simply think that the bill only applies to spamers, and that we don’t have to pay attention to it. 

We will have to consider carefully how it applies to what we as lawyers and our clients do that will be caught by this. To some extent, the regulations will be important. For example, will a “personal relationship” include a situation where I meet someone at a social or networking event or meeting who might be a potential client, and then follow up later with an email to that person?

When the bill gets passed (from what I’ve seen there is a good chance it will be), and the regulations get drafted, we will have to take some time to figure out in more detail how this affects things that well intentioned businesses (and lawyers) do that they don’t consider to be spam.

Today is Geek Pride Day, coinciding with the date of the premier of the first Star Wars Move in 1977. 

Wikipedia contains this manifesto:

Rights:

1. The right to be even geekier.
2. The right to not leave your house.
3. The right to not like football or any other sport.
4. The right to associate with other nerds.
5. The right to have few friends (or none at all).
6. The right to have as many geeky friends as you want.
7. The right to be out of style.
8. The right to be overweight and short-sighted.
9. The right to show off your geekiness.
10. The right to take over the world.

Responsibilities:

1. Be a geek, no matter what.
2. Try to be nerdier than anyone else.
3. If there is a discussion about something geeky, you must give your opinion.
4. To save and protect all geeky material.
5. Do everything you can to show off geeky stuff as a “museum of geekiness.”
6. Don’t be a generalized geek. You must specialize in something.
7. Attend every nerdy movie on opening night and buy every geeky book before anyone else.
8. Wait in line on every opening night. If you can go in costume or at least with a related T-shirt, all the better.
9. Never throw away anything related to geekdom.
10. Try to take over the world!

We hear far too many stories about bad customer service.  Or unsympathetic or unresponsive warranty service.  Or convoluted or unrealistic warranties.  So when we have a good experience, it deserves to be mentioned.

I have a Fiskars brand weeder.  It works well, but a couple of weekends ago it broke. 

Their web site says the product has a 25 year warranty.  They ask to either return the product, or snail mail them a photo, or email them a photo.

So I emailed a photo and a few days later received an email that said:

Hi David,

Thank you contacting Fiskars and for sending your photo of your broken weeder.   Unfortunately, we are out of inventory for this telescoping weeder in Canada.  We would still like to honor the warranty for your product.  Please select one of the following options for your replacement:

1.  $50 Canadian Tire gift card

2.  Replace with the non-telescoping weeder with a straight handle.

 I will await your reply with your choice.

Both good choices.   So I went to Canadian Tire, bought a new one, and replied saying I would take the gift card – which has already arrived in the mail.

Now that’s customer service.

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

I thought for my first post on the shiny new Slaw format, I should talk about a shiny new object.  Over a million iPads have been sold so far. Many comments about the iPad can be found on Slaw, including my thoughts that the iPad will be the disruptive tipping point that will define the category. This kind of device will fundamentally change how we consume information.

Several competing products are expected to be on the market within the next few months, some of which will address some of the iPad’s missing features. Of course, fans will say that the missing features is a feature as they allow the iPad to perform what it does very well.  I’ve seen one close up, and it is indeed impressive.

I’m convinced that while an iPad is not a laptop replacement it may be a good alternative to a laptop, especially as a portable companion to one’s main computer.  For me, its not if I will get an iPad or a competing device, its when.   I’m impatiently holding on for a few months to see how the competition shakes out.

These 2 articles are worth a read.

A Gizmodo post entitled: The iPad Is Such A Great Travel Computer That I’m Selling My Laptop 

This post entitled: 5 Great Excuses to Buy an iPad for Your Business

UPDATE: And if not for a business tool – make a iPad controlled video blimp.

For the London Free Press – May 17, 2010

Read this on Canoe

Court says popular site is not responsible for counterfeit items

We are all familiar with the sayings: “buyer beware,” “all that glitters is not gold” and “if it’s too good to be true, it probably is.” Case in point: On eBay, three out of every four items advertised as Tiffany’s jewelry are counterfeit products.

Nonetheless, the United States Court of Appeals has recently upheld the decision that eBay is not liable for trademark violations as against the jewelry retailer Tiffany. This decision is significant to retailers and the general public alike.

In 2004, after suspecting knockoffs of its jewelry were being sold on the eBay site, employees of Tiffany’s purchased hundreds of purported Tiffany’s products and tested them. Tiffany’s discovered three out of every four items were fake.

Based on this information, Tiffany sued eBay for trademark violations on its site. Tiffany alleged that eBay had general knowledge that the infringement was occurring.

As noted in the appeal decision, more than six million new listings are posted on eBay daily. And on any given day, it contains more than 100 million listings. eBay’s evidence at trial was that it spends as much as $20 million a year on tools to promote trust and safety on its website. In fact, eBay has an entire “trust and safety” department with more than 4,000 employees.

One of the tools that eBay cited in its defence is a rapid notice-and-takedown system called VeRO — the verified rights owner program.

This program allows eBay to respond very quickly to trademark complaints and, when necessary, to remove infringing content. Repeat offenders were suspended from selling their goods on eBay. EBay submitted that hundreds of thousands of infringing sellers were suspended each year.

The court has come to the right decision in this case. EBay itself is not the party selling counterfeit goods or violating trademarks. And it does deal with sellers making false claims when made aware of it.

If Tiffany had been successful, it would have likely resulted in over-policing of vendors by all online intermediary selling sites. (Other examples of such sites are Craigslist and Kijiji.) If these companies had to worry about trademark lawsuits and liability for every single sale that took place on their sites — and thus verify the authenticity of everything offered for sale on their sites — there would be a chill on e-commerce.

At the very least, there would certainly be much stricter guidelines for what could be sold on the site and who could sell it. Strict guidelines would undoubtedly result in higher costs and some legitimate sellers being excluded.

The ruling should be considered a win not only for the intermediary companies, but also for online sellers and consumers as well.

It should be noted, however, that eBay has not been so successful in other jurisdictions.

For example, in 2009 a French court found eBay responsible for brand counterfeiting and ordered them to pay the luxury group LVMH 80,000 euros in compensation for damages caused to famous perfume brands such as Christian Dior and Kenzo.

John Gregory has a good post on Slaw talking about a recent English case that considered when an email is received for the purpose of accepting an offer of a contract.

In some ways, it seems odd to discuss notices by email in a time where we talk about service of court documents by facebook and twitter.

But there are some real practical issues to consider when determining when an email is actually or deemed to have been received.  The date and timing can lead to major consequences for things like contract formation or termination.

For example, what if the email gets caught in a spam filter? What if the recipient doesn’t check their email?  What if the email address is no longer in use?  Does it make a difference if the recipient carries a smartphone after business hours?

When entering a contract that has a notice provision – don’t just add email (or facebook or twitter) to the list of acceptable notice requirements without putting some thought into these issues.

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

The Canadian government announced a consultation on the future of Canada’s digital economy at the Canada 3.0 conference this week. I encourage readers to add their thoughts to the consultation process – which is open for the next 60 days.

It is summarized as:

Digital technologies are critical to every aspect of our economy and society. That is why a strategy for the digital economy is needed to ensure that Canada is positioned to benefit from the opportunities that it presents.

All Canadians have a role to play in helping shape Canada’s digital future. Your perspectives, suggestions, ideas and submissions will be important inputs in the creation of our digital strategy. We appreciate your interest and participation.

This consultation, and the main message of the Canada 3.0 conference, is about building a digital media strategy for Canada so that by our 150th anniversary in 2017 everyone in Canada will be digitally connected. That’s both in the sense of connectivity, and how we use digital tools and media to work, learn, play, communicate,and manage our health.  The organizers are calling this the “Moonshot”.

The sentiment is that while Canada used to be a digital leader, we are falling behind.  And that the future of our country and economy depends on the aggressive adoption of new technology

Of course, this is an issue that is easy to state – but not so easy to do something about.  Questions include the roles of government vs business.  And differences in attitude and perspective of old vs new media. 

Some thoughts about the conference and this issue from a couple of people I know that were there are here and here.

Great post entitled “why this blog is a failure” that talks about how to increase one’s blog audience, and why that’s not for everyone. 

Frankly, unless your sole reason for being is to drive revenue from traffic, or to drive traffic for some specific reason, sheer numbers of followers for one’s blog, twitter, etc., is not the goal to strive for.