The Free Press has a good article this morning covering the entire front page of the Today section talking about this fundraiser, and showing the violins that are being auctioned and raffled off.

The text of the article is here.   Images of the violins and more detail about the event are on the Orchestra London web site.

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

It can be frustrating when a client comes for trade-mark advice, but has already started down a less than optimal path with their branding from a trade-mark perspective. If they have already used the brand and built up some goodwill, or have invested emotional energy into the brand, it can be difficult to change. Here are a couple of common issues that arise.

The most common mistake is adopting brands that are descriptive of the product or service. The thought behind that is “how else is anyone going to know what my product or service is?”

That is wrong for several reasons.

One simply cannot register a trade-mark that is descriptive. The trade-marks act says one cannot register a mark that is “…clearly descriptive or deceptively misdescriptive…of the character or quality of the wares or services…or of their place of origin”.

From a practical perspective, a brand that is descriptive doesn’t do a good job of distinguishing one’s brand from the competition.

A good brand is memorable, not descriptive.

The second mistake may or may not be a mistake depending on one’s circumstances and business plan, but it’s something that should be thought through early. A business often adopts several brands. Perhaps one for its overall name, and others for their individual products. That’s not unusual, and in some circumstances can be the right approach – but it may not be the best approach for a small or emerging business.

First of all, that means registering several trade-marks to protect those brands. And while registering a single mark doesn’t cost a lot of money, it can add up quickly if you have to register several. And multiply that by the number of countries one might sell in.

And if a business is trying to build up its brand image, this approach fractures the businesses brands along its product lines, rather than concentrating on one central brand that will gain recognition from all of its marketing efforts and sales.

It may be a better approach to create one memorable brand, and name your individual products in a more descriptive way on the understanding that those product names can’t be registered or protected.

The Ontario Superior Court of Justice just released a decision saying that there is no free-standing tort of invasion of privacy in Ontario.  For more detail see the Jones v Tsige decision (pdf), and commentary by David Fraser and All About Information.

The Ontario Court of Appeal in its decision in R v Cole talks about an employee’s expectation of privacy on a work computer.  For more detail see commentary by David Fraser and Dan Michaluk.   This decision was very fact driven, and found that there was an expectation of privacy for a work laptop for which the employee had permission to use for personal work, and to take home.  It tempered that expectation by an implied right of access by IT personnel to service and maintain the network.  And explicit company policies can counter that expectation.

So if your business does not have a technology use policy that addreses this issue, you should consider implementing one.

For the London Free Press.  March 21, 2011

Read this on Canoe

The anti-spam bill — Bill C-28 — was passed in December and is expected to be in force later this year. The main goal of the Act is the prevention of spam, but it also contains anti-spyware provisions.

Canadian software creators — indeed any entity selling software to Canadians — will need to review the Act, given the significant potential fines and consequences to directors and officers if there is a violation.

The goal is to eliminate the spyware, malware, and other malicious software which has essentially gone unregulated.

You might recall the Sony copy protection rootkit scandal which occurred in 2005 where Sony music CD’s automatically installed digital rights management software on users’ computers without their knowledge or consent. This software made operating systems more vulnerable to third-party attacks and could be used to collect and transmit information about computer use back to Sony. Under the act, such practices will be prohibited.

The Act applies to all software — good or bad — installed on someone’s computer. The definitions include any electronic instructions that execute to perform a function on any device capable of executing them.

That is extremely broad. It will include software installed on things such as smart phones, tablets, e-book readers and– since almost everything includes some kind of computing power these days — even things such as PVR’s and cars.

The Act prohibits the installation of computer programs and the transmission of electronic messages from a computer program unless the creator of the software has the express consent of the owner or authorized user of the computer system.

Express consent may only be obtained if there is a notice to the user containing prescribed information about the software, and clearly and simply describes the function and purpose of the program or program update to be installed.

In addition, if a program performs certain undesirable functions then more prominent and explicit disclosure is required. The Act contains a list of undesirable functions often found in spyware, malware, and other types of malicious software, including:

Collecting personal information stored on the computer;

Interfering with the authorized user’s control of the computer; 

Unknowingly changing or interfering with data; 

Unknowingly changing or interfering with settings, preferences or commands;

Causing the computer system to communicate with another computer system; and  

Installing a program that may be activated by a third party without the user’s knowledge.

 If software contains one of these functions, the program distributor must clearly and prominently bring to the attention of the user the reasonably foreseeable impacts of these functions.

Software vendors will have to consider how their software works, how the Act might come into play, and what permissions are required. They may need to amend their end user license agreements (EULAs) to comply. Some circumstances will require specific permission with full disclosure before the change can be made, regardless of the contents of a EULA.

Software vendors may want to consider whether changing from a traditional installed software model to a hosted SAAS or cloud model will avoid some of these issues.

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

The Canadian Privacy Commissioner’s most recent newsletter refers to a document entitled “Data at Your Fingertips: Biometrics and the Challenges to Privacy“.

I believe that biometrics will ultimately be the right solution for authentication and identification, and will help reduce the use of passwords which, lets face it, are very difficult in practice to use to their best theoretical effectiveness.

There are however challenges in using biometrics relating to privacy and identity theft.

The document starts off by saying:

Canadians are witnessing a growing interest among government and private-sector organizations in adopting systems that use biometric characteristics to automatically identify people or verify their identity. But whether a fingertip, a face or an iris is being scanned, what’s being collected is personal information about an identifiable individual.

And that makes it our interest too.

The Office of the Privacy Commissioner of Canada has prepared this primer on biometrics and the systems that use them. It also describes some of the privacy implications raised by this emerging field, as well as measures to mitigate the risks.

The document invites comments on the issue of privacy and biometrics before March 31.

Check out this Orchestra London event / fundraiser.

(Disclosure:  I’m on the Orchestra London board)

Today is March 3, or 3.14, and thus Pi Day.

Here is a Wikipedia entry on the topic, the Pi day website, and a page from the Exploratorium website where the day was founded.

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

I’m wondering what readers think about ipad2 vs Android tablet.

Lets assume for the sake of argument that one wants a tablet now, rather than waiting for another year to see how the market shakes out. And assume that the choice is between the iPad2 and the Motorola Xoom.

Lets also assume that the intended use is a combination of work and personal.

While this is not an exhaustive list, some things to consider are:

ipad2 pros:

existing user base of 15,000,000 units for ipad1.

huge number of apps

thinner and lighter

ipad2 cons:

no flash support

must use itunes to get content

Motorola Xoom pros:

flash support

direct usb connection instead of itunes

potential sd card slot for additional memory

widescreen format

Motorola Xoom cons:

fewer apps

possibly higher price

Android phones are holding their own against iPhones in the marketplace, so will the same happen with Android tablets?

Will the app advantage close over time? Is the app advantage overblown given the proportion of apps that are mere novelties or variations?

Will apps that matter always be developed first and perhaps only for the ipad given its cachet in the market?

In the long run are the relative advantages / disadvantages distinctions without a difference?

For the London Free Press – March 7, 2011

Read this on Canoe

The anti-spam bill — Bill C-28 — was recently passed, and will be in force this year. It gives new tools to fight spam, but unfortunately defines spam so broadly that it will affect how most organizations conduct business.

Businesses can’t just ignore the legislation. Remedies include fines of up to $1 million for individuals, $10 million for others, and private rights of action. Directors and officers can be liable if they authorized or acquiesced in the offence. Employers are liable for the actions of their employees acting within the scope of their authority.

The Act applies to the sending of commercial electronic messages that many of us would not consider spam. An e-mail to just one person you met at an event who you consider a potential customer may be considered spam.

The legislation starts with a broad definition of “commercial electronic message,” and says you cannot send such a message unless it fits within a specific exemption. It will be important to figure out the boundaries of “commercial activity.”

“Electronic message” is broadly defined to include a message sent via e-mail, instant message, phone, or “any similar account.” This encompasses forms of social media, depending on how the message is directed.

In some circumstances you can send the message, but must include accurate information about the sender, and a way to opt out of future messages.

Messages will not be considered spam if the recipient has consented to receiving the message. But it is up to the sender to show the recipient has consented if there is a complaint.

The Act has extensive provisions defining what amounts to explicit or implicit consent. It includes things we might expect, such as on-going business, personal or family relationships. There is also an exemption for “existing non-business relationships” which include donations, volunteer work, or memberships that have occurred within the last two years. Charities will need to review these provisions carefully, as they will affect how they approach prospective patrons, donors and volunteers. Also exempted are messages to those who publish their address or have provided you with their address — so long as the message is relevant. That means since my e-mail address is published on my firm’s website and other places, you may be able to e-mail me with anything relevant to the practice of law — but you won’t be able to e-mail me trying to sell me a trip. If I hand you my business card, the same applies.

So while the intention of the Act is to control what we all understand as spam, it has the potential to affect many things we may not consider spam. Similar to privacy legislation, this Act will no doubt lead to situations where we will consider it spam if we receive it, but not consider the same thing spam if we send it. Until we see drafted regulations, we aren’t sure what a typical organization must do to comply with the legislation. We will need to sort that out over the next few months.

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

Apple just held its press conference. Details about the iPad 2 will be found in the tech press. Engadget.com, wired.com/gadgetlab, and cnet.com are good ones to look at. Even the CBAPracticelink has an article about it. No doubt they will all have articles very soon comparing the iPad2 to the Motorola Xoom, and the upcoming Blackberry Playbook. And speaking of the Playbook, RIM gave an update and demo yesterday - but apparently still no details on launch date or price.

As I’ve mentioned before, tablets will forever change how we consume information and media – both as a consumer and business device.

Some info from the press conference (Steve Jobs was on stage):

Sales of 15 million iPads in the first 9 months. 65,000 apps are available.

Steve says 2011 will be “the year of the copycat”.

Dual core CPU – 2X faster CPU, 9X faster graphics

Front and rear cameras

gyroscope

Lighter and1/3 thinner than iPad – actually thinner than the iPhone4

black or white available

battery life is the same

prices the same

shipping March 11 – March 25 in Canada

can plug in HDMI cable for 1080P HDMI out.

can buy a specially designed cover (not a case) – useable as a typing stand (looks cool) stays on with magnets.

also updates to iOS 4.3 – available March 11 as free download for recent iPhone & iPod touch

will be able to stream video to the iPad using wifi, and ties into Apple TV

More details at www.apple.com

If you think you want a tablet, now is a good time to take a look at the alternatives, especially if you don’t want to wait until iPad10, or some other perfect device. As with any changing technology, at some point you just have to dive in and start using it, and stop waiting for the next generation.

Opinions on the right tablet are all over the map. Is it, for example, about the specs, the user experience, the number of apps, brand cachet, price, or some combination of the above? In reality, the iPad, Motorola Xoom or other Android Honeycomb devices, and the Playbook will all be good devices, and will all for the most part do the same thing. You just have to make a decision on the right one for you.

UPDATE: Take a look at this iPhone J.D. post entitled Why Lawyers will Love the iPad2.