Aussie Catering Company Pokes Brewery Over Trademark Spat, Now Finds Itself Potentially Losing The Mark Entirely
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It's a point we apparently need to keep hammering home: for there to be trademark infringement, there must be simultaneous use of a validly held trademark in the same market and there must be real or potential customer confusion. Too often businesses throughout the world are under the impression that trademarks are far more broad than they actually are and that they can be used like a cudgel to smack change out of the pockets of other businesses, competing or otherwise. There are risks to this behavior, including a ding to the bully's reputation, backlash from the public, and a loss of money spent on a legal action that need not have occurred.And, sometimes, a company risks losing the trademark over which it fought entirely. Meet Figjam & Co., a catering business in Australia that threw something of a fit over an Aussie brewery, Burleigh Brewing, having a celebrated beer entitled "FIGJAM Pale Ale."Figjam & Co owner Jason Davidson registered the trade name Figjam with IP Australia in 2005 before going on to establish a successful catering business that, among other things, provides beer, food and wine to weddings, parties and other functions. Mr Davidson’s Figjam trademark is registered for various goods and services including beer, fruit juices, syrups and other preparations for making beverages. What should be immediately clear is that catering and brewing businesses are not competing with one another. It's also the case that including drinks in your catering business does not put you in the brewing beverages business, thus having trademarks registered to include goods such as beer and juices doesn't make much sense. That's not how those trademark designations are used. We'll get back into that again later, but first I want to share with you a quote from Mr. Davidson that I think perfectly sums up why this was a silly fight to start. Keep in mind that the aim of trademark law is to prevent customer confusion about the origin of a good or service and that that confusion is part of the test for infringement.“I’m shocked to discover that Burleigh Brewing has been selling beer using my brand for more than five years,” Mr Davidson. “They would have sold millions of dollars of beer during that time under my trademark. This is a real warning to other small businesses.” This quote can be accurately remixed as the following: "There was such a dearth of any confusion among my customers that I had no idea Burleigh Brewing even had a beer including the Figjam name for over half a decade. They've done a ton of business, millions of dollars even, and I have never even had a whiff of any confusion from my customers. Now I'd please like a ton of money."That isn't the likely outcome of all of this, however. In response to being contacted about threatened litigation, Burleigh Brewing has decided to go on the offense.Australian intellectual property law prohibits use of a trademark that is “substantially identical or deceptively similar” to another trade mark on the same or similar goods or services. A trademark can, however, be challenged on the basis it is not being used on the goods or services for which is it registered.In the hope that it can obtain registration of the FIGJAM trademark, Burleigh Brewing has filed an application to remove Mr Davidson’s Figjam trademark. Oops. In other words, Davidson poked the bear and now the bear is trying to invalidate his trademark (I may be losing the analogy in there somewhere). And all this, mind you, over something that was of so little consequence that it had gone unnoticed for several years. Nice job, all around.
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posted at: 12:00am on 01-Jun-2017
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Could Firmware Expiration Dates Fix The Internet Of Broken Things...Before People Get Hurt?
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If you hadn't noticed, the incredibly flimsy security in most Internet of Things devices has resulted in a security and privacy dumpster fire of epic proportions. And while recent, massive DDoS attacks like the one leveled against DNS provider DYN last year are just one symptom of this problem, most security analysts expect things to get significantly, dramatically worse before they get better. And by worse, most of them mean dramatically worse; as in these vulnerabilities are going to result in attacks on core infrastructure that will inevitably result in human deaths... at scale.Estimates suggest that 21 billion to 50 billion IoT devices are expected to come online by 2020. That's 21 to 50 billion new attack vectors on homes, businesses and governments. And many of these are products that are too large to replace every year (cars, refrigerators, ovens) but are being manufactured by companies for whom software -- and more importantly firmware updates -- aren't a particular forte or priority.To date, there are a number of solutions being proposed to tackle this explosion in poorly-secured devices, none of which seem to really solve the issue. Agencies like Homeland Security have issued a number of toothless standards the companies that are making these poorly-secured products are free to ignore. And efforts at regulating the space, assuming regulators could even craft sensible regulations without hindering the emerging sector in the first place, can similarly be ignored by overseas manufacturers.In the wake of the Wannacry ransomware, University of Pennsylvania researcher Sandy Clark has proposed something along these lines: firmware expiration dates. Clark argues that we've already figured out how to standardize our relationships with automobiles, with mandated regular inspection, maintenance and repairs governed by manufacturer recalls, DOT highway maintenance, and annual owner-obligated inspections. As such, she suggests similar requirements be imposed on internet-connected devices: A requirement that all IoT software be upgradeable throughout the expected lifetime of the product. Many IoT devices on the market right now contain software (firmware) that cannot be patched even against known vulnerabilities. A minimum time limit by which manufacturers must issue patches or software upgrades to fix known vulnerabilities. A minimum time limit for users to install patches or upgrades, perhaps this could be facilitated by insurance providers (perhaps discounts for automated patching, and different price points for different levels of risk)." Of course, none of this would be easy, especially when you consider this is a global problem that needs coordinated, cross-government solutions in an era where agreement on much of anything is cumbersome. And like previous suggestions, there's no guarantee that whoever crafted these requirements would do a particularly good job, that overseas companies would be consistently willing to comply, or that these mandated software upgrades would actually improve device security. And imagine being responsible for determining all of this for the 50 billion looming internet connected devices worldwide?That's why many networking engineers aren't looking so much at the devices as they are at the networks they run on. Network operators say they can design more intelligent networks that can quickly spot, de-prioritize, or quarantine infected devices before they contribute to the next Wannacry or historically-massive DDoS attack. But again, none of this is going to be easy, and it's going to require multi-pronged, multi-country, ultra-flexible solutions. And while we take the time to hash out whatever solution we ultimately adopt, keep in mind that the 50 million IoT device count projected by 2020 -- is expected to balloon to 82 billion by 2025.
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