Laws of .com

Volume VII, Issue 16: November 5, 2009

UK Shop Assistant Almost Prosecuted by PRS for Singing at Work

ICANN Approves Non-Latin Script Languages for Domain Names

CRTC’s New Net Neutrality Rules are not Without Criticism

Nokia Sues for iPhone Related Patent Infringement

Mars Seeks Reversal of Trademark Infringement Decision

Facebook Wins $711 Million in Damages Against Spammer

Apotex Loses Patent Infringement Case

UK Shop Assistant Almost Prosecuted by PRS for Singing at Work

The Performing Right Society (PRS) issued a warning against a shop assistant working at a village store in Clackmannanshire, Scotland, indicating that her singing in the store would result in her prosecution and fines since she did not have a performance licence. The PRS is a non-profit membership organisation in the United Kingdom which collects licence fees from music users, and distributes the money to its members, the writers and publishers of music, and to affiliated societies worldwide. Earlier in 2009, the village store itself was contacted by the PRS who warned that the store required a licence to play a radio within listening distance of its customers. The store decided to remove the radio, prompting the shop assistant to fill the relative silence in the store with her own singing. The PRS’ resulting hard-line response was not only met with disbelief by the shop assistant, but public anger and resentment, causing the PRS to make an about face, apologising to the shop assistant with a note and a bouquet of flowers.

For additional information, visit:
http://tiny.cc/4aHcJ

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ICANN Approves Non-Latin Script Languages for Domain Names

At its annual meeting, the board of ICANN approved the use of Chinese, Arabic and other non-Latin-script languages for domain names. Currently, domains are limited to 36 specific characters, namely, the Latin alphabet, numerals and the hyphen. The change is expected to further the reach of the Internet through a more inclusive domain name interface. ICANN said applicants for Internationalized Domain Names (IDNs) may apply as of November 16, 2009 and the first domains are expected to be up and running in mid-2010.

The initial names will relate to country code type top level domains (ccTLDs) and non-Latin versions of popular domains like .com and .org will not be available in the first wave.

Numerous technological hurdles and domain name policies remain to be resolved before IDNs become universal. For example, policies will need to be implemented to balance the rights of brand owners and current owners of Latin-script names with those governments pushing for control of IDNs.

For additional information, visit:
http://www.icann.org/en/announcements/announcement-30oct09-en.htm
http://tinyurl.com/yk293gy

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CRTC’s New Net Neutrality Rules are not Without Criticism

The Canadian Radio-Television and Telecommunications Commission (CRTC) issued a ruling on Wednesday allowing telecom Internet Service Providers (ISPs) to interfere with Internet traffic – but only as a last resort. ISPs will still be able to use management practices that affect traffic shaping, slowing down of certain applications, and limiting bandwidth usage of heavy downloaders, but with qualifications, such as using “economic measures” to help stop congestion on their networks and ensuring the practice causes the least harm possible to the consumer. In addition, the new framework includes provisions requiring ISPs to provide customers with notice of any changes to network management. These changes must be posted on the ISP’s website with a description of how customers’ Internet services will be affected by the change.

The reaction to these changes appears to be mixed. The Public Interest Advocacy Centre, a consumer watchdog group, stated that this new framework leaves “decisions as to whether economic or technical measures are required” in the hands of the ISPs. NDP digital issues spokesman Charlie Angus and Canadian professor at Columbia University, Tim Wu (originator of the concept of net neutrality) were also critical. Bell was pleased with the decision, and Rogers stated that new framework was not necessary but one with which they could live.

For additional information, visit:
http://tinyurl.com/yk6wzrc

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Nokia Sues for iPhone Related Patent Infringement

On October 22, 2009, Nokia, Inc., globally the largest cell phone manufacturer by handset market share, sued Apple, Inc. in the Federal District Court in Delaware, claiming that Apple’s iPhone infringes 10 patents in respect of GSM, UMTS and wireless LAN (WLAN) innovations held by Nokia. The suit also alleges that the patents are fundamental to making devices compatible with those standards, and for implementing wireless data, speech coding, security and encryption.

It has been postulated that the suit is somewhat preemptory of Nokia’s own launch of mobile touch-screen technology, which may include Apple intellectual property. Ikka Rahnasto, Nokia Vice President, Legal & Intellectual Property, is quoted in Nokia’s press release for the principle that mobile phone innovation should be available to all manufacturers by way of license. "The basic principle in the mobile industry is that those companies who contribute in technology development to establish standards create intellectual property, which others then need to compensate for ... Apple is also expected to follow this principle. By refusing to agree [upon] appropriate terms for Nokia's intellectual property, Apple is attempting to get a free ride on the back of Nokia's innovation." The obvious implication (supported by analyst Gene Munster with Pier Jaffray) is that Apple has not concluded a license with Nokia for rights to the patents at suit; but it may also imply that Nokia has not been successful in getting cross licenses to Apple’s intellectual property. Nokia, by seeking royalties as a means to address its claims, may be trying to preempt potential injunction applications from Apple.

For additional information, visit:
http://tinyurl.com/ye52tzf

For the Nokia Press Release, visit:
http://tinyurl.com/yz7hdq6

For the Apple Insider view, visit:
http://tinyurl.com/y8oe2md

For a list of the patents at issue, visit:
http://tinyurl.com/y9t3qe2

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Mars Seeks Reversal of Trademark Infringement Decision

Mars, the manufacturer of Maltesers, is seeking to overturn an Australian court decision dismissing its application for trademark infringement against Sweet Rewards, the importer and distributor of a rival product, Malt Balls.

Last June, the Federal Court of Australia dismissed Mars’ claims and held that Sweet Rewards did not infringe Mars’ Maltesers packaging nor engaged in passing off, misleading or deceptive conduct. In deciding that no trademark infringement took place, the Federal Court took note of the fact that Maltesers are very well known in Australia, having been in the market for more than 50 years. In addition, there are marked differences between the packaging of the two products. Therefore, the Federal Court held that it is highly unlikely that an ordinary consumer of confectionary products would confuse the two. “In that sense, Mars is a victim of its own success,” the Federal Court added.

Mars is currently appealing the decision before a three-member appeals court. During a recent hearing, Mars’ counsel said that the Federal Court’s decision “sends a shiver down ... the spines of the owners of powerful trademarks.” He also said that the strength of the Maltesers brand appeared to disadvantage his client.

For additional information, visit:
http://tinyurl.com/yzk5sby

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Facebook Wins $711 Million in Damages Against Spammer

A Federal District Court in Northern California has awarded Facebook USD$711 million in damages against Sanford Wallace, an online marketer who improperly obtained other users’ login information in order to send wall posts and phony messages to those users’ friends, making it more likely that these recipients would click on the message leading to outside phishing and commercial sites. Wallace would then receive compensation for driving traffic to these sites.

Facebook also won a USD$873 million judgment last year against a Canadian accused of using a similar technique to sell products.

It is unlikely that Facebook will collect the full legal settlement, as Wallace has declared bankruptcy. In addition, Wallace already has judgments against him for more than USD$200 million.

For additional information, visit:
http://tinyurl.com/yzda9ej

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Apotex Loses Patent Infringement Case

A U.S. District Court has ruled that Apotex Inc., the Toronto-based generic drug manufacturer, infringed certain patents held by Irvine, California-based Allergan Inc. relating to Allergan’s Alphagan ophthalmic solution for glaucoma treatment. Apotex’s generic brimonidine product, as well as a generic product manufactured by India’s Exela PharmSci Inc., was found to infringe on the patent based on the District Court’s finding that the Allergan patents are valid and enforceable. The ruling protects Allergan’s financial interest in the Alphagan product, which Allergan expects will yield $350 million in sales for 2009. Allergan is also the maker of Botox for wrinkles.

For additional information, visit:
http://www.bloomberg.com/apps/news?pid=20601202&sid=aDnqjzUhDClk

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