I view, you view, he/she/it views

YouView is a new ‘converged’ AV project in the UK, jointly run by the public service broadcasters and some communications providers (BT, Arqiva and TalkTalk).  It’s based around a set-top box which facilitates access to broadcast TV signals (Freeview) as well as on-demand content through a broadband connection.  Some of you may know it by its working title, Project Canvas.  The new name became public in mid-2010 and was officially launched later that year.  Its main function is to get on-demand content onto the TV screen, particularly for audiences without satellite or cable subscriptions.

There have been various delays (and changes in the participants) but this year it’s finally up and running and ready for Christmas.  It’s having a little bit of bother with its trade mark, though.  When the name was unveiled, there was plenty of chatter about whether it would face problems in being compared with YouTube.  That didn’t seem to go anywhere.  But first at the Registrar of Trade Marks (decision), and now in the High Court ([2012] EWHC 3158 (Ch)) an objection has been upheld on the grounds that there is a likelihood of confusion with a different already registered, similar mark in the same class, ‘Your View‘.  As far as I know, this is the relevant service, but I don’t know much more about it or how long it has been used; it’s a brand within a UK telecoms company called Total.  The application was made in June 2009. YouView’s was made in April 2010.  The domain linked above has been registered for six years and Total had certainly used it well in advance of application, but it’s not the issue in the case; it’s clearly legitimate and not some kind of cash-in.

Although the application of trademark law is relatively straightforward here, two points (possibly) tangents struck me as interesting.  The first is about similarity.  In the original hearing, there were many issues, with YouView prevailing on some and Your View prevailing on others.  But on appeal, YouView is still criticising the finding that its application is for a mark similar to the existing mark, and ends up arguing that the term ‘telecommunications services’, mentioned in the Your View mark, should be defined as ‘the core of telecommunications, which are the kind of services that are provided by telecommunication undertakings in conducting their telecommunications remit – telephone data and broadband – and are not services that are essentially broadcasting services‘.  This would mean that YouView’s application for ‘apparatus for  television or radio reception’ would not be a problem.

Floyd J is not having it, though, and even has a nice little discussion of the Ofcom communications market reports on changes in telecommunications.  (Although not discussed, EU law no longer talks all that much about telecommunications, but instead about electronic communications networks (Dir 2002/21, art 2)).  It also occurs to me that there is an interesting claim being made by YouView that what it does is ‘television or radio’, particularly in the light of EU definitions of AV media services, where television means a linear (not on-demand service), whether through broadcasting or telecommunications, including the Internet.  But anyway, the result is that the trade mark application of the perfect example of convergence (is it a TV? is it a computer? is it linear? is it interactive?) is successfully opposed (in part – other aspects survive) because of convergence.  You couldn’t make it up…

(There is also an issue regarding the definition of software / databases, and YouView is unsuccessful on this point, too).

The other, rather fun, point of interest to me, was the distinction between you view and your view from a grammatical point of view.  YouView argued (again, unsuccessfully) that you view might be imperative whereas your view is possessive.  I must confess that I had never give much thought to whether I was being commanded to view or not.

Maybe Project Canvas wasn’t such a bad name after all.

(Credit to Broadcast Magazine for bringing the case to my attention)

Intellectual property: love or hate?

Now available via ‘advance access’ (institutional login required) to the Journal of IP Law & Practice (JIPLP) is my colleague Prof. Christopher Wadlow‘s barnstorming piece on Marmite, the BNP and the law, The Marmite Election. I had the pleasure of hearing the ‘live’ version of this piece earlier in the year, and it has already received a good deal of informal praise (including from those outside of law – note the use of semiotic theory and cultural studies alongside the expected doctrinal legal analysis). Aside from the thorough analysis of a range of trademark, copyright and passing off issues, including the relationship between these points and freedom of political expression, the reader will also find a remarkably wide range of references to authors, bands and musicians (from Florence & the Machine to Morrissey via Vera Lynn and Samuel Beckett), the X Factor and snowclones (to name but a few) in the text and footnotes. It’s also quite funny, and as such is an appropriate way for JIPLP to mark the end of another busy year. Enjoy!

Injunctions and newspapers (but not the way you think)

Shameful stuff from Associated Newspapers: off they went to the High Court to seek an injunction.  (I’m not sure exactly what the claim was – it appears to have been IP-related, but the Guardian report says it was about ‘trademark copyrights’, which is a new one on me).  The reason?  A spoof newspaper, the METR0 (zero instead of O in the actual METRO), the subject of a website and a small physical distribution effort in London.

There’s a fabulous transcript (PDF) of the late-night hearing, with Smith J expressing some serious scepticism about the whole enterprise and the realistic impact of the spoof on Associated’s interests.  It does remind me of the climax of that excellent film The Yes Men Fix The World (which I saw at Cinema City in Norwich, recently broadcast on TV and now available on DVD).  They produced and circulated a note-perfect spoof New York Times.  No injunctions there.  Perhaps Associated are a little more sensitive about the fine brand that is Metro.

But seriously – how can a newspaper, in good conscience, go for an injunction like this, the type of thing that if it were served on a newspaper would provoke immediate (and fair) criticism of judges stopping the presses at the eleventh hour and suppression of press freedom.  The political campaigners and satirists behind Metr0 may not have the record of Private Eye, but to be the subject of an attack from a newspaper is just bizarre.  The fact that the basis was IP rather than defamation or privacy does not change this.  I feel like Neil Kinnock’s 1985 grotesque chaos quote is hanging over this…

Cyberlaw: cyberlaw cyberlaw cyberlaw cyberlaw cyberlaw cyberlaw

(Long post. Forgive me. This is too funny.)

This blog deals with many issues, including cyberlaw. In fact, cyberlaw is one of the categories I use. Cyberlaw is a term used to describe law (or regulation, or control) on the Internet, or in cyberspace. My profile on my Law School’s website (which I must update!) says that my research interests include cyberlaw. I wrote a paper last year called Minerva’s Mouse: The Challenge Of Cyberlaw that had a whole section on what cyberlaw is or isn’t. I also presented a different paper at the Society of Legal Scholars last September in the Cyberlaw subject section. The convenor of that section, Prof. Steve Hedley (UCC), does great work with the cyberlaw mailing list. He also maintains a list of graduate level law courses in cyberlaw.

To be honest I’m not a huge fan of cyberlaw as a term but it’s quite a common one and a lot of people use/understand it, not least the authors of noted textbooks: examples include Brian Fitzgerald (QUT, Australia) who edited a two-volume set called Cyberlaw (I had the pleasure of meeting him last summer in Boston. He’s cool). On my library desk, I have a copy of the new edition of Cyberlaw: problems of policy and jurisprudence in the information age by Bellia, Berman & Post. Some day, I hope to visit the Center for Internet and Society at Stanford Law School (check out their website at http://cyberlaw.stanford.edu/). Newcomers, of course – sure Harvard Law School has taught courses with cyberlaw in the title since 1994…

All this is trivial, though, when you compare it with the importance of the use of the word cyberlaw by a law firm called Cyberlaw(R) PC (their website, at the inventive address of cyberlaw.pro, is here; he has a blog called Cyberlawg. Yes, we must be aware of Mr. Menhart’s trademark (which he doesn’t actually have, as it’s pending) and as the EFF reports, he’s already tried to take a shot at a cyberlaw blogger, Michael Grossman (who uses Cyberblawg); not sure why as Grossman’s blog is relatively new and quite quiet. Maybe Menhart should try pick on someone else. There’s loads to choose from, especially in the light of his delightfully expansive trademark application, which includes gems like:

Providing a website that features information on the development of international law, regulations, legal policies, and legal practices in a manner that promotes global governance by all types of organizations;

and not to mention

Providing information relating to legal affairs

You can see the trademark application here – serial number 77341910. Note that this is a “Newly filed application, not yet assigned to an examining attorney” and nothing more.

I look forward to receiving a notice from the esteemed cyberlawyer. Bring it on ;)

I read about this sorry affair on one of my favourite technology law (or cyberlaw?) blogs by Eric Goldman. Here’s his post. A separate post came from Peter Black (also of QUT, and also interested in cyberlaw), so cheers to Peter for that.

Goldman did a little bit of digging and found that the word cyberlaw had been used in news stories back as far as the early 1990s. He mentions Jonathan Rosenoer’s column on AOL; I found (from an archived usenet group) that Rosenoer even had a trademark (at the time!).

CyberLaw ™ is published solely as an educational service. The author may be contacted at …; questions and comments may be posted on America Online (go to keyword “CYBERLAW“). Copyright (c) 1993 Jonathan Rosenoer; All Rights Reserved. CyberLaw is a trademark of Jonathan Rosenoer.

It was indeed registered by him but was designated as abandoned in 2000 (US trademark office serial number 75085442). The trademark was filed in 1996 (with a claim of first use in commerce for 1992) but the record doesn’t show much success

2001-02-22 – Abandonment – Failure To Respond Or Late Response

2000-06-23 – Final refusal mailed

2000-05-18 – Assigned To Examiner

1999-03-12 – Letter of suspension mailed

1999-03-12 – Assigned To Examiner

1997-06-17 – Letter of suspension mailed

1996-11-07 – Non-final action mailed

1996-10-23 – Assigned To Examiner

But even back in those days, cyberlaw-l was used as the name of a mailing list (different to Steve Hedley’s cyberlaw list)

CYBERIA-L@listserv.cc.wm.edu (the law and policy of computer networks; formerly CYBERLAW/CYBERLAW-L) (send the following message to the listserv@listserv.cc.wm.edu (or listserver@eagle.birds.wm.edu): subscribe cyberia-l Your Name)

And the EFF (alive at that stage so it’s appropriate that they’re involved now) had cyberlaw as a subject heading in their Compuserve form in 1992 (here).

In February 1987 (nearly a whole twenty-one years ago), Cyber Digital Inc included the following in an earnings report (PR Newswire via Nexis):

Cyber Digital Inc., designs, develops, manufactures and markets, digital switching and networking systems known as CyberSwitch, CyberLAW and CyberHUB. CyberSwitch provides voice communications capabilitiess. CyberLAW is a local area and wide area network. CyberLAW enables users to connect together personal computers, terminals, wordprocesssors, printers, and many different makes of computers and office systems. CyberLAW permits users to send and receive data, text, as well as graphics information over standard existing telephone lines. CyberHUB combines the capabilities of CyberSwitch and CyberLAW into a single multi-purpose integrated system offering simultaneous transmission of data and voice.

Hmmm.

Oh, and finally, and you’ll all love this. Menhart’s specimens submitted in support of his (as yet unsuccessful) application consist entirely of screenshots of his own website. Have a look at the gory details here. Is that really it?