May 25, 2009
The posting of a YouTube video of a woman throwing a tantrum at the Hong Kong International Airport should serve as a reminder to Canadian businesses that employees these days can (and do) easily record and post videos online from their mobile phones.
The three minute video shows a Cathay Pacific customer yelling and flailing her limbs as she lies on the floor after missing her flight from Hong Kong to San Francisco. I’ve been upset at missing a flight before, but the woman in this video takes things to an entirely new level. The video has drawn over five millions views and nearly 21,000 comments, which has resulted in some incredibly cruel and objectionable online commentary about the woman. Since the release of the video, Cathay Pacific has disciplined the gate worker who recorded the video on his mobile phone (although the video was posted on YouTube by a third party) and the company has issued a formal apology to the woman.
The video is noteworthy because it demonstrates the power of new technologies such as YouTube and the corresponding risks to Canadian businesses. Had the video been recorded by an employee of a Canadian business, subject to Canadian privacy laws, the potential privacy complaint and/or lawsuit by the woman in the video could have been substantial.
Canadian businesses should be reminded of the need to protect against the dissemination of this type of video through employee privacy training and the adoption and enforcement of privacy policies and procedures.
Canadian businesses don’t need to look too far to find examples where more effective employee privacy training may have mitigated, or even prevented, privacy complaints.
Read the rest of this entry »
May 21, 2009
The Manitoba Legislature is currently debating Bill 219 – The Personal Information Protection and Identity Theft Protection Act.
The Bill has been introduced as a private member’s Bill by Mavis Taillieu of the Opposition Progressive Conservative Party of Manitoba. It seeks to regulate the collection, use and disclosure of personal information by organizations in the private sector and is intended to be “substantially similar” to the federal Personal Information Protection and Electronic Documents Act (PIPEDA). It would also establish a duty for organizations to notify individuals who may be affected when the personal information an organization has collected is lost, stolen or compromised. Such a requirement would be groundbreaking in Canada (notwithstanding Ontario’s Personal Health Information Protection Act, which has a mandatory breach notification requirement).
Regrettably, the Government of Manitoba indicated in the Legislative Assembly debate last week that it has two primary concerns with the Bill. The first concern is that the Bill lacks an independent oversight body such as a Privacy Commissioner of Manitoba. Legislative rules prevent private member’s Bills from containing financial penalties and so the Bill could not contain such provisions. However, the government could add those provisions in amendments. In fact, I assisted with the drafting of the Bill and would happily provide the government with the relevant provisions. The second concern raised by the government is that the Bill would introduce legislation in Manitoba that (according to the government) would regulate activities in the private sector already governed by PIPEDA. However, PIPEDA does not apply to the activities of private sector organizations in provinces such as Alberta and British Columbia, both of whom have Personal Information Protection Acts, because PIPEDA does not apply where “substantially similar” provincial legislation exists.
The Bill was first introduced in 2005 and since that time the need for such a law has significantly grown. It’s modelled after Alberta’s Personal Information Protection Act, which provides a more business-friendly and clear legislative scheme than PIPEDA. As I’ve previously argued, it would be good policy for the Government of Manitoba to support the Bill and I once again urge them to do so.
If you want a more business-friendly privacy law in Manitoba, I’d strongly encourage you to contact the Government of Manitoba and Mavis Taillieu to indicate your support.
Additional coverage on this topic by the Canadian HR Reporter here.
May 13, 2009
You have probably seen the ® or ™ symbol on products or in advertisements. But what do these symbols mean and when is it appropriate to use them?
Generally, the ® or ™ symbols are used in connection with a trade-mark, which is a word, symbol or design used to distinguish the wares or services of one person or organization from those of others. Trade-marks can be valuable intellectual property.
The Trade-marks Act (Canada) (the “TM Act”) does not contain any marking requirements. However, trade-mark owners often indicate their registration through certain symbols, namely, ® (registered) or ™ (trade-mark). Although the TM Act does not require the use of these symbols, in Canada, the ™ and ® symbols may be used whether the trade-mark is registered or not. However, while this is not a requirement of the TM Act, the ® should be used only if the mark is registered with the Canadian Intellectual Property Office. If the ® is used and the mark is not in fact registered, it may be possible for someone to argue its use amounts to false advertising. The ™ suggests the mark is not registered, but can help establish distinctiveness in the mark.
One should be especially careful using the ® outside in Canada. In certain jurisdictions, including the U.S., ® may only be used by the owner of a mark following registration with that jurisdiction’s trade-mark office. For example, if a Canadian company is marketing a product in the U.S. and its mark is not registered with the U.S. Patent and Trademark Office, it would not be able to use the ® in connection with its mark and could only use the ™, even if the company has been using ® in Canada all along.
Businesses should consider having their intellectual property “audited” by legal counsel with an expertise in the field and, in doing so, developing an appropriate trade-marks business strategy. When I advise my clients on trade-marks matters I often rely on the expert counsel of my friends and colleagues Jolin Spencer (whom I should thank for this blog post), Robert Watchman and Howard Nerman, all of whom have expertise in trade-marks law.
May 5, 2009
This month’s Canadian Lawyer magazine’s feature article, entitled The Privacy Dance, profiles Canada’s Privacy Commissioner, Jennifer Stoddart. The article provides an excellent overview of contemporary privacy issues in the context of featuring the esteemed career of Stoddart.
In my view, Canada is very well served by Stoddart and her team at the Office of the Privacy Commissioner of Canada. As a result, it’s nice to see that Stoddart’s ongoing efforts to protect and promote the privacy rights of Canadians are being recognized by the Canadian Lawyer Magazine.
May 5, 2009
Earlier this year, the Internet Corporation for Assigned Names and Numbers (“ICANN”) announced that they will be opening up the generic Top Level Domain extensions (the “gTLDs”) to allow for personalized extensions. I could (for a mere US$185,000.00+) now apply for a .brian or even a .privacy. And while the chances of me starting a .brian are very slim, it will be interesting to see how many organizations pay the application fee and create their own .blank extension. Opening up the gTLDs will likely force trademark owners to evaluate their brand strategies and, in doing so, weigh the costs and benefits of buying any or all gTLDs related to their brand.
If you’re a trademark owner and you want to approach your strategy conservatively, then you may want to take a defensive position and register any of the gTLDs that relate to the business in which you’re engaged. The list of commercial gTLDs would include .com, .net., .info, .org, .tel, .biz, .mobi, .tv and any other TLDs that seem to have a commercial application. Additionally, you may want to register and maintain the country code domain names (ccTLDs) in the jurisdictions where your organization offers, or plans to offer, its products or services. Once this is completed, you should then register any known variations of your trademark.
While, in theory, this is a very effective strategy – in practice, this strategy will be more difficult to execute. For example, the owners of Lego currently own 450 domain names within the TLDs. They recently pursued and won a WIPO arbitration decision against a cybersquatter who had registered the domains Justlegos.com, legosonly.com, and onlylegos.com; illustrating that even the most vigilant defensive strategy for the registration of domains names cannot prevent all infringements. As such, any brand strategy should be accompanied by vigorous monitoring and enforcement. The decision about which TLDs to register is a business decision that must weigh the cost of brand enforcement from a defensive position and an offensive position.