Using Trademarks to Silence Critics?

The law is a tool often fraught with controversy in its application, especially when this yields results contrary to the wishes of the public or a smaller segment of society more adversely affected. Most areas of law have examples of this, more recently some discussion has been raised about issues such as this relating to copyright. Intellectual property law does run the risk of being used selectively, either maliciously or through attacks to silence or influence others. In this writer's mind a statement made by Lord Denning in the famous case of Combe v Combe encapsulates well the idea in the use of legal protection, more specifically relating to intellectual property rights, even though the case itself pertained to promissory estoppel; "[the law] is a shield not a sword".

That is one snazzy logo

In a recent example of a potential misuse of the intellectual property rights afforded by trademark legislation is the company Canonical's attempt to influence a website operated by Micha Lee called Fix Ubuntu; a website which seeks to remedy alleged shortcomings of the operating system "Ubuntu". The name of the operating itself is a registered trademark owned by Canonical, having been filed in May 2013. Although the company's motives on the outset are purely to protect their trademark, which they are wholly entitled to do and have to do should they want to retain it, what lies underneath their initial steps can be questioned.

The use of trademarks (and other intellectual property rights) as a way to silence critics or to prevent active discussion as to the potential faults of company or a group is nothing new. The Church of Scientology has reportedly used its rights to attempt to take down websites, and Playboy has utilized its trademark rights to take down a website operated by the feminist group FORCE which parodied Playboy's website.

Canonical were not critical of what Mr. Lee had written on his website, but were mainly concerned about the use of their trademarked name and logo, as can be seen through the email sent to Mr. Lee:

"Unfortunately, in this instance we cannot give you permission to use Ubuntu trademarks on your website and in your domain name as they may lead to confusion or the misunderstanding that your website is associated with Canonical or Ubuntu. 

So, whilst we are very happy for you to write about Ubuntu, we request you to remove Ubuntu word from you domain name and Ubuntu logo from your website."

Prima facie the intentions of the company are wholly legitimate, as has been said above; however it has been pointed out that Canonical has been selective in its protection of its trademarks, leaving less critical or even promotional websites not associated with Canonical operational without hindrance. This by itself showcases a potential motive to use trademarks as a sword, not a shield.

The potential misuse of trademarks is a problem, and can be illegal if it hinders the rights of its users under freedom of speech provisions. Even though this writer does accept that companies can, and should, protect their rights, they should be more cautious in their endeavors to do so. Claims over infringement should be thought through and be legitimate; not merely an effort to stifle criticism or commentary.

Source: Ars Technica

New Zealand Bans Software Patents - Or Did They?

As we have turned towards an ever-more computerized world, software has arguably become almost as valuable as the hardware it runs on. Without effective protection through patents for innovative software products, the field would be a free-for-all of copying, using others' methods and creating an environment where innovation would not persist. Some have argued, and rightfully so to an extent, that the field has lead to a culture of abuse and 'patent trolls' where software patents are merely a conduit for quick cash-in schemes for companies who have no intention of ever using the patented software. Due to this clear misuse there have been calls for reform or the full fledged abolishing of software patents in the common law, and finally those calls have been answered by the far-away land of New Zealand.

Software engineers' collective disappointment

In mid-2008 the New Zealand Parliament had the Patents Bill introduced, which sought to "...update the New Zealand patent regime to ensure that it continues to provide an appropriate balance between providing adequate incentives for innovation and technology transfer". The Bill introduces a cavalcade of changes to the old Patents Act 1953, being one of the biggest modifications of the New Zealand patent legislation in 60 years. The Bill introduces an exception to patentability for computer programs in very express terms. Although the exclusion provision states that computer programs are not patentable, this is not the case entirely. 

Under a Supplementary Order Paper to the Patents Bill computer programs are not patentable "...as such if the actual contribution made by the alleged invention lies solely in it being a computer program" (emphasis added). The first two words highlighted in the quote above prove integral to the interpretation of this new provision; software patents are not allowed as such, but should they be a way to implement a patentable process, they can be patentable. The SOP provides an example of a chip in a washing machine, through which a computer program in the chip improves the washing machine's operation. In such instances the software in the chip could be patentable. What is important is the interconnection between the software and the improved process.

In interpreting this the new provision employs a similar approach to that of the European Union and the United Kingdom. This approach was set out in the case of Aerotel Ltd v Telco Holdings Ltd (and others) and Macrossan's Application, intepreting section 1(2) of the UK Patents Act 1977 dealing with the subject matter of what is not an invention. The New Zealand provision's wording, albeit slightly different, still encompasses the heart of the Aerotel considerations, while adding specifics pertaining to their own legislation, and arguably using the Aerotel test would prove beneficial for the New Zealand judiciary.

Kiwis are very apt with technology

In assessing a patent and whether it is excluded from patentability under the Aerotel approach, the courts would have to properly construe the claim; identify its actual contribution; ask whether it falls solely within the excluded subject matter; and check whether the actual or alleged contribution is technical in nature. The first factor is purely a standard assessment of the patent claim, deciding what the monopoly would be before considering its possible exclusion. The second factor is deciding whether the inventor has really added anything to the stock of human knowledge, emphasizing the substance of the invention (what it actually contributes) above the form of the claim itself (what is argued it contributes). The third factor is assessing whether the contribution is solely an unpatentable subject matter. Should the invention be a patentable subject matter, the final consideration is if it is of a technical nature. 

The New Zealand approach is assessing the substance of the claim (rather than its form and the contribution alleged by the applicant) and the actual contribution it makes; what problem or other issue is to be solved or addressed; how the relevant product or process solves or addresses the problem or other issue; the advantages or benefits of solving or addressing the problem or other issue in that manner; and any other matters the Commissioner or the court thinks relevant. Clearly this echoes the approach given above, and would be served well should the New Zealand judiciary consider the Aerotel test.

So as one can see New Zealand has effectively banned software patents, but only to the extent that they exist independently. Calling this a blanket ban is merely hyperbolic, but the potential abuses that have been experienced with pure software patents have been remedied, and it remains to be seen whether the rest of the world will follow suit. Calls have been made for the US to do the same, but with vast amounts of money being tied into software innovation in the US, it can be argued that a ban over software patents in the US is still well behind the horizon.

Source: ZDNet