Laws of .com

Volume VI, Issue 13: June 26, 2008

RIM Triumphs in .CA Complaint over Blackberry Domain Names

Copyright Reform Bill Could Result in $20,000 Fines for Canadians

Ontario Court Grants Injunctive Relief for Internet Libel

Engineer Sentenced Under U.S. Anti-Spy Law for Providing Military Software to China

Judge Wants Panel to Investigate His Own Pornographic Postings

FTC Halts Deceptive Domain Name Practices of Canadian Company

Alberta Court Decision Raises Potential for New Defence of “Literary Licence”

EU Sets Sight on Cross-Border E-Commerce

RIM Triumphs in .CA Complaint over Blackberry Domain Names

Research in Motion Limited, owner of the BlackBerry trademark for its wireless devices, has won a CIRA domain name dispute with Olivier Mullie. Mullie, an Ottawa resident, registered numerous .ca domain names related to the term “blackberry”. Some of the domain names included the term (e.g. planetblackberry.ca and blackberryshop.ca, among others) while others included variations (e.g. shopcrackberry.ca and bberry.ca).

Though the complaint was not defended, under CIRA’s policy it was incumbent upon RIM to prove its rights, that the dispute domain names were confusingly similar to RIM’s marks and to establish the Registrant’s (Mullie’s) bad faith registration. The Panel easily found similarity between the domain names that include the term “blackberry” and RIM’s marks and its domain name, shopblackberry.com. The Panel also referenced common use of the term “crackberry” as a cultural nickname for RIM’s devices, citing Webster’s Dictionary, to find similarity to shopcrackberry.com. RIM showed a pattern of domain registrations by Mullie that included either registered or common law third party Canadian trademarks and that Mullie had no legitimate interest in the domain names.

For more information, visit:
http://www.cira.ca/en/dpr-decisions/00101-blackberry.ca.pdf
http://www.cira.ca/en/cat_dpr_policy.html

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Copyright Reform Bill Could Result in $20,000 Fines for Canadians

Recently the Canadian federal government introduced a controversial copyright reform bill, Bill C-61, (which is currently awaiting its second reading after Parliament’s summer break). The bill is expected to harmonize Canadian copyright laws with the country’s obligations under the World Intellectual Property Organization (WIPO) treaty.

Despite harsh public criticism, the federal government claims that Bill C-61 strikes a balance between the rights of copyright holders and consumers. Some portions of Bill C-61 actually serve to clarify areas of uncertainty under existing laws by expressly allowing consumers to copy books, videocassettes and music, as long as consumers restrict themselves to one copy per device.

The anti-circumvention clause will make it illegal to break digital locks on copyright material, which means that CD and DVD makers could insert copy protections on their discs and consequently make it illegal for consumers to circumvent these protections. Similarly, television networks could attach technological flags to programs that would prevent them from being recorded onto TiVos and other personal video recorders. Even cell phone users who buy a device from one carrier and then use it with another could find themselves facing up to $20,000 in penalties.

People caught downloading music or video files illegally can also be penalized up to a maximum of $500. Considering that the percentage of home Internet users who download music has increased from 37 percent to 45 percent, it is no surprise that copyright holders have openly supported Bill C-61. However, it remains to be seen who will police the Internet for these violations.

For more information, visit:
http://www.cbc.ca/technology/story/2008/06/12/tech-copyright.html

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Ontario Court Grants Injunctive Relief for Internet Libel

In the recent case of Manson v. Moffett, the Ontario Superior Court of Justice granted the Plaintiff injunctive relief for Internet libel.

The Plaintiff invented a “comminuting device” (i.e. a grinder) used for grinding herbs and spices. This device is protected by a U.S. patent and is sold in Ontario using the Canadian registered trademark “Sweetleaf”. It is also sold on the Internet via the Plaintiff’s website. The Defendant sold “Greatleaf” nut grinders in the U.S. and Ontario. Through the use of metatags, the Defendant misdirected the Plaintiff’s customers to his websites. The websites contained information that undermined the Plaintiff, including suggestions that the Defendant’s grinders were similar in quality to those of the Plaintiff, but sold at a much cheaper price. The Plaintiff sought damages and an injunction for Internet libel.

The Ontario Superior Court of Justice stated that the Defendant’s sole purpose in publishing statements impugning the Plaintiff on his website was to sully the name of the Plaintiff and his product, and found Internet libel to have existed as a result.

The Court also reflected on the appropriateness of granting injunctive relief in a situation whereby the Defendant is not ordinarily resident in the jurisdiction. It held that the Plaintiff’s case represented an appropriate circumstance to grant injunctive relief. In this situation, the Court can at least protect against the impugned conduct in its own jurisdiction.

For a copy of the decision, visit:
http://www.canlii.org/en/on/onsc/doc/2008/2008canlii19789/2008canlii19789.html

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Engineer Sentenced Under U.S. Anti-Spy Law for Providing Military Software to China

A former Silicon Valley engineer has been sentenced to 2 years in prison for stealing military technology and trying to sell it to the Chinese Government. The conviction is the first under the provisions of the Economic Espionage Act of 1996, which make it illegal to steal trade secrets to benefit a foreign government. The defendant pleaded guilty to allegations that he installed software owned by his former employer, used to simulate real-world motion for military training purposes, onto the Chinese Navy Research Center site using stolen technology that is said to be the “crown jewel” of his former employer. Defendant’s counsel argued for a more lenient sentence on the basis that his client is not spy of China, but simply a disgruntled employee.

For more information, visit:
http://www.mercurynews.com/ci_9623624

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Judge Wants Panel to Investigate His Own Pornographic Postings

The criminal prosecution of alleged pornographer Ira Isaacs was suspended after it turned into a personal issue for presiding judge, Alex Kozinski, who called for an investigation into his own conduct regarding lewd photos and videos stored on his family's then-publicly accessible website. Justice Kozinski, Chief Judge of the 9th U.S. Circuit Court of Appeals, asked an ethics panel of the court to initiate proceedings after the disclosure about a collection of sexually explicit material found in a cache of the website content.

Although he requested an investigation, it is unclear what, if any, discipline Justice Kozinski could face. Federal Circuit judges are appointed for life and can be fired only by Congress, although their fellow jurists can censure them. Supreme Court Chief Justice John Roberts was asked to assign the inquiry to a panel of judges outside the 9th Circuit's jurisdiction. Court rules permit such investigations to be transferred in high-profile cases or when a decision within a district might weaken public confidence in the outcome.

Another issue is that Kozinksi’s name had been mentioned as a possible Supreme Court candidate. However, the investigation will raise the issue as to whether content on a judge’s personal website is something that can affect public confidence in the impartiality and integrity of that judge and the judiciary as a whole.

For more information, visit:
http://news.yahoo.com/s/ap/20080612/ap_on_re_us/obscenity_or_art

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FTC Halts Deceptive Domain Name Practices of Canadian Company

A federal district court in Chicago issued restraining and asset freezing orders against the Canadian corporation Data Business Solutions Inc. and its principals. The order follows from a complaint made by the Federal Trade Commission (“FTC”) to the court alleging that Data Business Solutions Inc. had, since 2004, been sending fake invoices to small U.S. businesses requesting payment for domain name services that it did not provide. The invoices appeared to come from the U.S. businesses’ existing domain name registrars.

The FTC plans to ask the court for a permanent injunction against Data Business Solutions Inc. and its principals, and for redress for the victims of the fraudulent scheme.

For a copy of the decision (Federal District Court), visit:
http://www.ftc.gov/os/caselist/0723038/080514internetlistingservtro.pdf

For additional information, visit
http://www.ftc.gov/opa/2008/06/ils.shtm

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Alberta Court Decision Raises Potential for New Defence of “Literary Licence”

An Alberta man posted a number of statements online communicating his desire to kill Canadian Prime Minister Stephen Harper, and was charged under the Criminal Code with uttering death threats. Waiving his right to counsel, the accused admitted that he had posted the statements. However, he said that these statements were jokes and that he never had any intention of killing Mr. Harper.

The trial judge considered whether the accused had a sufficient intention to utter a threat or whether this was “literary licence.” The situation was novel in the sense that the accused posted his words on the Internet for general public consumption, and it is difficult to ascertain the intention of an accused who posts online written threats which are not sent directly to the recipient of the threat.

The trial judge acquitted the accused based on his lack of intention to utter a threat or create a climate of fear. On appeal, the court found that a more objective view was required, and that the trial judge should have assessed the mens rea (or intention of the accused) by looking to the words used, the context in which they were spoken and the person to whom they were directed. The trial judge’s assessment was entirely on a subjective basis, without consideration of the objective context, and so a new trial was ordered.

A new trial was also ordered because the trial judge appeared to have accepted a defence of “literary licence”, which is not a known defence to the charge. The appeals court held that this amounted to accepting a freedom of expression Charter argument that was not raised or argued by the parties. This was found to be an error of law; however, the court did not preclude the possibility of this defence being argued successfully.

For a copy of the decision, visit:
http://www.canlii.org/en/ab/abqb/doc/2008/2008abqb251/2008abqb251.html

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EU Sets Sight on Cross-Border E-Commerce

The market of 500 million European shoppers is ripe for consumer protection regulation. This was the message that the EU Consumer Commissioner delivered on June 20th, 2008.

Speaking at a Roundtable on Digital Issues in London, Meglena Kuneva set out a vision for an EU-wide single online market. The proposed new legislation will cut back on the current jungle of complex laws and offer a simplified common set of rules for business to consumer contracts across the EU.

The ultimate goal is to create a single convenient online shopping avenue for the EU citizens. 150 million people, about a third of the EU population, already shops over the Internet, but only 30 million of them purchase goods and services from another EU state. Kuneva cites unfair commercial practices and artificially limited business models along national borders as barriers in a move towards EU’s single online market.

Past efforts demonstrate that the journey will not be smooth. The simplified set of rules will likely reignite a recurring battle in which member states prefer to avoid dilution or toughening of national regulations. Furthermore, the states’ different interpretations of the law severely impedes cross border enforcement as evident in a recent enforcement sweep in the online airline ticket sales sector.

It is remarkable that 15 years have passed since the EU's single market was introduced, yet e-commerce has still not been fully embraced by it. However, with the proposed new legislation, European shoppers are closer than ever to a regulated online shopping experience.

For additional information, visit:
http://uk.news.yahoo.com/rtrs/20080620/tot-uk-eu-online-retailers-b86c26b.html

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