Which is why this smells to me a lot like the tort of passing off... which is what TM law was originally based on...
Passing off is very basically a common law action which enables you to stop someone from representing themselves as you, assuming that misrepresentation is somehow detrimental to you in some abstract way of course.
I'm not convinced on TM on ticker symbols... sounds slippery to me. But PO is pretty plausible from what I can see.
Re: Re: Re: Re: \"This clause would outlaw Google\"
Actually the "innocent until proven guilty" thing only relates to criminal proceedings. All above are actually civil provisions. In civil cases you just need to prove "on the balance of probabilities", which is a much lower standard of proof. Courts will usually err on the side of the defendant, but it doesnt change the fact the level of proof required is lower than in criminal cases.
Re: Re: Re: Re: \"This clause would outlaw Google\"
Yup... unintended consequences... I believe technically called "Doh!'s" by those who create laws.
I'm really just saying that all those provisions suggested already exist in the laws in most (western) countries. So unintended consequences are really irrelevent (because nothing new is being proposed).
BUT!!!! What I really fear is that some bribed up politician would then take the covenants in the treaty and decide to turn them into draconian law, something that Chariman Mao would be proud of. And use that law to screw up the internet. Thats a very real fear and pressure needs to go on the politico's so they know thats not going to happen.
Re: Re: Re: Re: \"This clause would outlaw Google\"
You miss the point. With the knife example you'd have to prove that someone was actually going to use it on someone. Your argument that "all knives get used as weapons and therefore that person will use their knife on someone" is weak at best. It wouldnt be hard for me to show plenty of cases where people have knives and dont use them as weapons. Even if the judge was high and agreed with you then at best he could just injunct me not to use the knife, if I did I'd get a fine for being in contempt of court. Whats the point (of course that would be in addition to the criminal conviction I would face). Certainly no argument there to ban knives. Also the laws around injunctions cant ban anything, they can only tell people to do something (which is a technical distinction only I know).
As for the post office, you couldnt injunct the post office to stop serving all mail. You'd have to specify which piece of mail they had to stop delivering. Injunctions are not as broad as you assume, they are quite specific. As it stands the law can force the bank to freeze an account and could (I believe) stop the post office from delivering a piece of mail (although maybe not in the US where you have certain entrenched constitutional rights which would override such an injunction).
I agree that Google shouldnt be forced to spend squillions of dollars stopping other people from doing illegal things. Thats not their job. I'm just pointing out that the argument in the article that these clauses would place that burden on Google are incorrect.
Yeah, but what this is really talking about is a "Quia Timet" interlocutory injunction, a concept that already exists in most common law countries (eg USA, UK, Canada, NZ, Australia, etc...). Quia Timets are hard to get at the best of time because you need to prove not just that offending might occur, but that offending is imminent, that is that it is going to happen. You can't just walk into a court and say "Bob is going to steal my money" grant me an injunction. You have to prove that on the balance of evidence Bob IS going to steal your money.
Interlocutory injunctions are generally even harder to get as they can in many scenarios decide a case before its arguments are heard. So most courts only hand them out when on the balance of the evidence presented the plaintiff has a very strong case and is likely to win. In some cases they are granted Ex Parte but those have even higher standards.
So you combine the Quia Timet and Interlocutory together and I imagine its going to be a mountainous task to get one granted for anything other than a serious and very, very well proven case. (as far as I am aware most countries already allow these injunctions so its nothing new, its just that they are so hard to get no one even bothers trying).
The other thing you need to remember is the maxim relating to injunctions (which are part of traditional equitable law) that a decision is made on the balance of convenience. This roughly means that by granting an injunction you cause more harm to the defendant than is 'reasonable' then an injunction would not be granted.
So given an understanding of how injunctions work and are applied I am less concerned about this. I think the remedies it proposes actually already exist in most places, just they aren't as easy to get as some people here think. I cannot see how it would be possible under the jurisdictions I am familiar with for a court to "shut down google" because they "might be somewhere in the chain of offending". The law in this area just isnt as black and white as Boston Legal led us all to believe :)
Not a lawyer, but... (profile), 24 Mar 2010 @ 3:50pm
Re: Re: This is it
Yeah but remember that in most states (by this I mean countries, not the USA states) international treaties and agreements are not binding in Judicial decisions. So the executive government can sign an agreement and the courts are free to ignore it, unless that agreement is then made into law.
In practice most courts do take into account agreed international obligations when considering a case. But you couldnt initiate litigation against someone based on an international treaty, there would have to be something in the existing states laws or codes to do that.
I wonder if this means the guys working away in the likes of Boeing on missile systems (or whoever makes them) for the US government cant use iTunes while designing a missile.
"Hang on Bob, I just gotta install Winamp before I can work on that missile schematic for you..."
A real price is basically whatever the consumer is willing to pay for it (its perceived value). The debate comes when there is a difference between what the consumers perceived value and the producers bottom line. A producer normally (but not always) sets their bottom line at the total cost divided by the total number of units they want to sell (essentially break even). It all gets much more complicated than this as you argue about what constitutes fair costs to include and you then increase those costs by trying to increase the perceived value (promoting the product).
Pricing is also a living thing, it keeps evolving - especially as perceptions of value and base line costs keep changing.
The advent of ebooks makes things hard as printing and distribution are two major cost factors in working out your base line cost (and therefore what you think a real price should be). If everyone buys ebooks the cost is only lower if you never printed or shipped any paper copies, if you still printed then your overall costs are about the same. Encouraging people to ebooks doesnt help that much as you still need to print, and with printing its not a linear cost, doing 1/2 the number of books might make costs go up 4-5x.
So thats why print companies hate it. Many authors dont like it because they may be locked into contracts with printers which ensure the printer doesnt lose out if the costs overrun... the author loses.
So there are two sides to the story, and context to the comment about real price is important. Having said that, at the end of the day, consumers (and competition) decide if $9.99 is a real price or not. If it is then some authors will lose out for a while until they adapt to the new model.
On the post: Are Investment Ticker Symbols Covered By Trademark Law?
Re: Designed to confuse
Passing off is very basically a common law action which enables you to stop someone from representing themselves as you, assuming that misrepresentation is somehow detrimental to you in some abstract way of course.
I'm not convinced on TM on ticker symbols... sounds slippery to me. But PO is pretty plausible from what I can see.
On the post: Full ACTA Draft Leaked... EU Wants Injunctions Against The Possibility You Might Infringe
Re: Re: Re: Re: \"This clause would outlaw Google\"
On the post: Full ACTA Draft Leaked... EU Wants Injunctions Against The Possibility You Might Infringe
Re: Re: Re: Re: \"This clause would outlaw Google\"
I'm really just saying that all those provisions suggested already exist in the laws in most (western) countries. So unintended consequences are really irrelevent (because nothing new is being proposed).
BUT!!!! What I really fear is that some bribed up politician would then take the covenants in the treaty and decide to turn them into draconian law, something that Chariman Mao would be proud of. And use that law to screw up the internet. Thats a very real fear and pressure needs to go on the politico's so they know thats not going to happen.
On the post: Full ACTA Draft Leaked... EU Wants Injunctions Against The Possibility You Might Infringe
Re: Re: Re: Re: \"This clause would outlaw Google\"
As for the post office, you couldnt injunct the post office to stop serving all mail. You'd have to specify which piece of mail they had to stop delivering. Injunctions are not as broad as you assume, they are quite specific. As it stands the law can force the bank to freeze an account and could (I believe) stop the post office from delivering a piece of mail (although maybe not in the US where you have certain entrenched constitutional rights which would override such an injunction).
I agree that Google shouldnt be forced to spend squillions of dollars stopping other people from doing illegal things. Thats not their job. I'm just pointing out that the argument in the article that these clauses would place that burden on Google are incorrect.
On the post: Full ACTA Draft Leaked... EU Wants Injunctions Against The Possibility You Might Infringe
Re: Re: "This clause would outlaw Google"
Interlocutory injunctions are generally even harder to get as they can in many scenarios decide a case before its arguments are heard. So most courts only hand them out when on the balance of the evidence presented the plaintiff has a very strong case and is likely to win. In some cases they are granted Ex Parte but those have even higher standards.
So you combine the Quia Timet and Interlocutory together and I imagine its going to be a mountainous task to get one granted for anything other than a serious and very, very well proven case. (as far as I am aware most countries already allow these injunctions so its nothing new, its just that they are so hard to get no one even bothers trying).
The other thing you need to remember is the maxim relating to injunctions (which are part of traditional equitable law) that a decision is made on the balance of convenience. This roughly means that by granting an injunction you cause more harm to the defendant than is 'reasonable' then an injunction would not be granted.
So given an understanding of how injunctions work and are applied I am less concerned about this. I think the remedies it proposes actually already exist in most places, just they aren't as easy to get as some people here think. I cannot see how it would be possible under the jurisdictions I am familiar with for a court to "shut down google" because they "might be somewhere in the chain of offending". The law in this area just isnt as black and white as Boston Legal led us all to believe :)
On the post: Full ACTA Draft Leaked... EU Wants Injunctions Against The Possibility You Might Infringe
Re: Re: This is it
In practice most courts do take into account agreed international obligations when considering a case. But you couldnt initiate litigation against someone based on an international treaty, there would have to be something in the existing states laws or codes to do that.
On the post: If You're A Terrorist, You're Not Allowed To Use iTunes
"Hang on Bob, I just gotta install Winamp before I can work on that missile schematic for you..."
On the post: Author Claims $9.99 Is Not A 'Real Price' For Books
What is a real price
Pricing is also a living thing, it keeps evolving - especially as perceptions of value and base line costs keep changing.
The advent of ebooks makes things hard as printing and distribution are two major cost factors in working out your base line cost (and therefore what you think a real price should be). If everyone buys ebooks the cost is only lower if you never printed or shipped any paper copies, if you still printed then your overall costs are about the same. Encouraging people to ebooks doesnt help that much as you still need to print, and with printing its not a linear cost, doing 1/2 the number of books might make costs go up 4-5x.
So thats why print companies hate it. Many authors dont like it because they may be locked into contracts with printers which ensure the printer doesnt lose out if the costs overrun... the author loses.
So there are two sides to the story, and context to the comment about real price is important. Having said that, at the end of the day, consumers (and competition) decide if $9.99 is a real price or not. If it is then some authors will lose out for a while until they adapt to the new model.
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