Waiting for that new iPhone5? Excited to see what Samsung’s new Galaxy Phone is all about, or anxious about the latest Droid? We all are, in some way. But the truth is all these shiny new goodies will incorporate many of the patents from a failed hi-technology juggernaut – Nortel Networks. The Ottawa, Ont. based company rapidly expanded in the nineties and was a world leader in technological innovation. Its souffle like collapse ignited a firesale of useful patents that many of its formal rivals, like Nokia, Apple and RIM have been eager to snap up. The treasure trove of riches that is Nortel wireless technology will help shape your next smart phone and the network it will run on for the next ten years, at least.
Duncan Stewart, director of research at Deloitte, said as smart phones grow ever more popular, the patents behind the technology in them will grow ever more important.
Waterloo, Ont.-based RIM has been eager to access this technology. RIM has struggled recently to compete with Cupertino, Calif. based Apple.
RIM executives have stated “These are crucial things that are going to be at the core of networks almost certainly for at least the next decade.”
A Globe and Mail news article reports that:
A consortium of companies which includes RIM, Apple, EMC, Ericsson, Microsoft and Sony, won the auction Friday with a bid of $4.5-billion. The bid beat Google’s attempt at acquiring the valuable technology. Google has been rapidly gaining market share in the wireless market with its Android operating system.
There is also concern the patents may fall into the wrong hands, spurring a cascade of expensive litigation.
“Certainly litigation by entities colloquially known as patent trolls in the United States has become something of an epidemic,” he said. But, Ullmann noted, that at $4.5-billion, it was difficult to believe that the purchase was a purely defensive move. “There must be inherent value for them in this stuff as well,”
The immediate effect of Nortel’s patents is still unclear, and whether it will effect the race between RIM and Apple is yet to be seen. These patents are the remnants of a once powerful telecommunications company. The company may no longer exist, but it’s valuable intellectual property is still leading the industry years after its collapse.
I’ve read quite a bit about Facebook in the news recently, and most of the stories are about trademark infringement lawsuits. I thought it would be interesting and informative to briefly summarize a few of these law suits and discuss some of the trademark issues and black letter law.
Recently, Facebook began to offer customized URL addresses to its users. It was a helpful option that allowed people to share their pages with others without long, cryptic and incomprehensible URL strings most often associated with generic, computer assigned URLs. For example, a user named John Doe could choose to have his personalized URL read http://www.facebook.com/johndoe. Various companies and trademark holders were concerned that users could choose to register well known trademarks and brand names instead of their own names. If users then sold these popular name URLs, they derived a benefit unfairly by exploiting the good will of a company and a registered trademark. If a personal user chose to register the URL http://www.facebook.com/starbucks that would constitute a trademark infringement, cyber squatting and possible dilution.
Facebook has taken steps to prevent such use. It will not allow users to select a personalized URL during the early registration if they joined the social networking site after June 9, 2010. This well prevent a flurry of users seeking to register different types of names. Also, Facebook has given all companies registered with their site an early registration window where they can register their personalized URL before any other user. Facebook has also made these URLs non-transferable so that no user may buy or sell or derive any profit from the registration. Facebook will also hear complaints from companies who allege users have unfairly pirated their name as a URL.
Facebook has also been on the prowl, actively searching for trademark infringers. It found one target, a consortium of teachers and educators who created an online “Teachbook” using a similar social networking concept as Facebook. Facebook’s greatest fear is that using the “-book” suffix could create many other groups that would dilute their brand. Indeed, as we have learned in class through examples such as Xerox, Aspirin and Shredded Wheat that effective policing is critical to the survival of a brand. Facebook is undoubtedly a trademark savvy company and recognizes that maintaining its intellectual property requires active policing to prevent third party use of confusingly similar or the same marks.
Clearly, Facebook cannot afford to hale into court each and every infringer as the cost of litigation makes such a course of action highly impracticable and disagreeable. For example, at my previous law school, we had an online “Face Book” where our school mug shots were stored on the University of Ottawa intranet and only law students and professors could access the site. Given the recent successes of Facebook in federal court on the issue of the suffix “-book” it is not unlikely that Facebook may have a strong chance of success.
Facebook sued “Teachbook” for cyber-squatting, trademark infringement, unfair competition and trademark dilution in the U.S. District Court for Northern California. Facebook’s complaint reads that “book” has no descriptive meaning but it is arbitrary, and highly distinctive in the context of social media and networking sites. Facebook argues that its use in commerce of the work “book” has gained secondary meaning and therefore deserving of protection. Facebook goes on to state that allowing “book” to be used by other social networking “would dilute the distinctiveness of the Facebook marks, impairing their ability to function as unique and distinctive identifiers of Facebook’s goods and services.”
Within the last week, Facebook has successfully registered the word “face” as it applies to Facebook. The U.S. Patent and Trademark Office on Tuesday issued a Notice of Allowance and to get final approval, Facebook must show that the mark is used in commerce. This protection only extends to “telecommunication services, namely providing online chat rooms and electronic bulletin boards for transmission of messages among computer users in the field of general interest and concerning social and entertainment subject matter.” This marks a success in Facebook’s quest to trademark the word “face.” For over 6 years it has sought such protection, beginning in 2005 when it challenged Faceparty.com, a U.K. social-networking site that launched in 2000.
Facebook is not the only one doing the suing. Recently “Lamebook” (which is an online parody of Facebook which features funny pictures, comments and wall-to-wall conversations) pre-emptively sued Facebook seeking an injunction presumably to prevent Facebook from suing it on the basis of trademark infringement. It appears that dispute resolution efforts have failed and Facebook filed a counterclaim within days. Facebook’s recent court appearances and lawsuits demonstrates that the company not only is serious about protecting its intellectual property, but it has felt threatened by the recent growth of “facebook-like” social networking sites.
So what the heck are Miranda rights anyway?
In 1966, the USSC decided the case of Miranda v. Arizona. The court held that when a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment (Canadian Charter Rights and Freedoms Section 11(c) ) right not to make any self-incriminating statements. Post-Miranda, anyone in police custody must be told four things before being questioned:
- You have the right to remain silent.
- Anything you say can and will be used against you in a court of law.
- You have the right to an attorney.
- If you cannot afford an attorney, one will be appointed for you.
Read the decision here: Miranda v. Arizona.
When a police officer questions a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary. It cannot be used against the accused in any criminal case. Evidence discovered as a result of that statement or confession will likely also be suppressed.
Recently, the Supreme Court of Canada has refused to import the Miranda rights concept into Canada. Chief Justice Beverley McLaughlin, writing for the majority in a 5-4 split court said:
We are not persuaded that the Miranda rule should be transplanted in Canadian soil,While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone
“carries significant and unacceptable consequences for the administration of criminal justice and the constitutional rights of detainees in this country.”
Arizona’s tough new immigration law has been blocked hours before it was to take effect. This marks a key victory for Obama who has taken steps to control the issue. The new law included several provisions including one that would allow a police officer to determine the immigration status of a person detained – if that police officer had reasonable suspicion that the person was not in the country legally.
US District Judge Madame Justice Susan Bolton also blocked a portion of law that required immigrants to carry their papers at all times and making it illegal for people without immigration papers to seek work in public places.
So where did this law come from? The GOP controlled Arizona legislature passed the law three months ago ostensibly to drive out nearly 500 000 illegal immigrants from the border state and curb the increasing drug and narcotic problem, as well as the human smuggling issues that have become more pronounced in recent years.
The U.S. Justice Department argues that provisions of the law encroached federal authority of immigration policy. Obama called the law misguided. This law is far too overbroad and is unable to deal with the significant problems in a precisce manner, nevermind the civil liberty infringements it would have on the residents of Arizona. Laws should be drafted in such a way that they deal with the problem in a precisce and surgical manner. Just as a surgeon wouldn’t use a butcher knife to operate on a patient, laws are to be used as a ‘scalpel’ to provide an clean and exact solution to pressing social problems. Arizona can ultimately to the Supreme Court. The law would subject hispanic or ‘hispanic looking’ people to prove their immigration status and embarassment. The law is the toughest immigration law in any U.S State (or Canadian province). There are approximately 11 million illegal immigrants. 65% of Arizonans support the new law.
Madame Justice Cantil-Sakauye would become the first Filipina-American to lead the state’s judiciary, if confirmed by voters in November.
Now let’s get Godwin Liu to the Court of Appeals for the 9th Circuit, and then maybe the Supreme Court!
Good job, California!
In the United States, the Second Amendment protects citizens’ rights to bear arms. In Canada, the Charter of Rights and Freedoms guarantees citizens’ certain basic civil and political rights. In Finland, a recently passed law now makes a broadband internet connection a legal right. How about that!
The diminutive northern Scandinavian nation, is a relatively small country, with a population just over 5-million. Known for their excellence in the telecommunications industry, perhaps this new law isn’t so surprising. Finland’s high court recently passed the law last month. The Finnish government has also indicated that the law is only an intermediary step towards a guaranteed 100-Mb connection to all Finns in 2015.
The notion that the access to information is a human right is not new. Everybody relies heavily on the internet. Students need it for school work, whether it be downloading assignments, research, not to mention keeping in touch with friends through email and social networks. Those in the workforce perhaps rely on it even more extensively. The internet isn’t a luxury anymore, it is a necessity. According to a recent survey, four in five adults believe access to the Internet is a fundamental right — with those feelings particularly strong in South Korea and China — and half believe it should never be regulated.
While I find it difficult to justify that access to the internet as a legal right akin to other fundamental freedoms enshrined in the Charter or U.S. Bill of Rights, such as freedom of speech, religion and freedom of assembly – there is no question that access to information is important. It should be readily available, whether at coffee shops, the library, or other public places, and it should be affordable and easily accessible. Healthy competition between service providers and less regulation of the industry is a good way to ensure that consumers are given the most choice and best prices for internet access.