SLCC Rankles Judge With Social Media Posts As A Jury Prepares To Rule
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We've been following the trademark dispute between the Salt Lake Comic Con and the San Diego Comic-Con for some time now, including all of its strange ups and downs. Despite this whole dispute starting something like three years ago, the trial itself has kept a brisk pace, with SLCC already resting its defense and jury deliberations beginning this week as well. While we'll have to wait for the jury's decision, the trial has gone pretty much as we expected. SDCC rolled out its trademark registration that it appears to have forgotten it ever had until recently from an enforcement perspective, along with some commissioned surveys suggesting that the public views the word "comic-con" as a brand and not a generic term. SLCC has pointed out that there are a ton of other comic cons out there, few of which have any licensing agreement with SDCC, and SLCC had expert witnesses poke some glaring holes in the SDCC's survey.Andrew Baker, associate professor of marketing at San Diego State University, reviewed the survey for Salt Lake Comic Con and testified Wednesday that the results are flawed. Because of risks he saw of "good participant bias," and because the online survey didn't include a way to weed out unreliable responses from people who may have attempted to fill out the survey for money, Baker criticized the results as inconclusive."This study cannot be relied upon to tell us the percentage of people who think comic con is a brand," Baker testified. Bryan Brandenburg, one of the partners behind SLCC, took the stand to recount the process by which they came up with the name Salt Lake Comic Con. As you'd expect, he recounted searching around for other similar conventions, noting that nearly all of them were using the "comic con" phrase, or some variant of it, and concluding that this is just what those types of shows are called. It's an understandable position, particularly given the descriptive nature of the phrase. A "comic con" is a "comic convention." Simple. One would hope the jury would understand that simple fact.But there was some minor drama in the courtroom surrounding SLCC's desire to speak out about the case on its social media platforms, specifically to do with Brandenburg's testimony and the defense he would offer.The post announced that Brandenburg would take the witness stand to show that "comic con is owned by the people, by all the fans that experience the joy and celebration of comic con in cities all over the world."Battaglia prohibited such arguments in the trial based on objections raised beforehand by San Diego. He warned that if Brandenburg intended to make any such statements during his testimony, "tell him to bring his toothbrush with him." Notably, Brandenburg did not raise that defense on the stand, so His Honor was not forced to put him in jail. But this wasn't the only remark Judge Battaglia made on the subject. He expanded upon it in a way that shows him bristling with the striking down of his earlier gag order on SLCC from speaking at all about the case."The circuit seems to believe people can say whatever they want in the world and in the media, but they don't get that privilege in my courtroom," Battaglia noted Wednesday. Well, okay then. While I've cheered on SLCC discussing the case in public for the benefit of that public, and while we were quite critical of Battaglia's gag order, the freedom to speak is not without its dangers. It's a little surprising that SLCC would be so cavalier with its public comments on social media sites that run directly contrary to the orders of a judge who had already tried to slap it with a gag order. That's just silly and a sign that, whatever happens moving forward, SLCC should probably get its PR house in order.Regardless, the jury is in deliberations and you can be sure we'll be commenting on the results they bring back.
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Top EU Data Protection Body Asks US To Fix Problems Of 'Privacy Shield' Or Expect A Referral To Region's Highest Court
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The Privacy Shield framework is key to allowing personal data to flow legally across the Atlantic from the EU to the US. As we've noted several times this year, there are a number of reasons to think that the EU's highest court, the Court of Justice of the European Union (CJEU), could reject Privacy Shield just as it threw out its predecessor, the Safe Harbor agreement. An obscure but influential advisory group of EU data protection officials has just issued its first annual review of Privacy Shield (pdf). Despite its polite, bureaucratic language, it's clear that the privacy experts are not happy with the lack of progress in dealing with problems pointed out by them previously. As the "Article 29 Data Protection Working Party" -- the WP29 for short -- explains:Based on the concerns elaborated in its previous opinions ... the WP29 focused on the assessment of both the commercial aspects of the Privacy Shield and on the government access to personal data transferred from the EU for the purposes of Law Enforcement and National Security, including the legal remedies available to EU citizens. The WP29, assessed whether these concerns have been solved and also whether the safeguards provided under the EU-U.S. Privacy Shield are workable and effective. As far as the commercial aspects of Privacy Shield are concerned, the WP29 is unhappy about a number of important "unresolved" issues such as "the lack of guidance and clear information on, for example, the principles of the Privacy Shield, on onward transfers [of personal data] and on the rights and available recourse and remedies for data subjects."The issue of US government access to the personal data of EU citizens is even thornier. Although the WP29 welcomed efforts by the US government to become more "transparent on their use of their surveillance powers", the collection of and access to personal data for national security purposes under both section 702 of FISA and Executive Order 12333 were still a problem. On the former, WP29 suggests:Instead of authorizing surveillance programs, section 702 should provide for precise targeting, along with the use of the criteria such as that of "reasonable suspicion", to determine whether an individual or a group should be a target of surveillance, subject to stricterscrutiny of individual targets by an independent authority ex-ante. As regards the Executive Order 12333, WP29 wants the Privacy and Civil Liberties Oversight Board (PCLOB) "to finish and issue its awaited report on EO 12333 to provide information on the concrete operation of this Executive Order and on its necessity and proportionality with regard to interferences brought to data protection in this context." That's likely to be a bit tricky, because the PCLOB is understaffed due to unfilled vacancies, and possibly moribund. In conclusion, the WP29 "acknowledges the progress of the Privacy Shield in comparison with the invalidated Safe Harbor Decision", but underlines that the EU group has "identified a number of significant concerns that need to be addressed by both the [European] Commission and the U.S. authorities." It spells out what will happen if they aren't sorted out:In case no remedy is brought to the concerns of the WP29 in the given time frames, the members of WP29 will take appropriate action, including bringing the Privacy Shield Adequacy decision to national courts for them to make a reference to the CJEU for a preliminary ruling. That is, it will ask the EU's highest court to rule on the so-called "adequacy decision" of the European Commission, where it decided that Privacy Shield offered enough protection for EU personal data moving to the US. There's a clear implication that WP29 doubts the CJEU's ruling will be favorable unless all the changes it has requested are made soon. And without the Privacy Shield framework, it will be much harder to transfer personal data legally across the Atlantic. Moreover, the EU's data protection laws are about to become even more stringent next year, when the new General Data Protection Regulation (GDPR) is enforced. Organizations in breach of the GDPR can be fined up to 4% of annual global turnover, which means even the biggest Internet companies will have a strong incentive to comply.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
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