Trade Mark 46664

I know a lot of patent agents, and even though I'm no longer practicing I still get newsletters, calendars, etc from all over the world. The newsletters help keep me up to date. The following was sent to me by my friends at Adams and Adams, an excellent Intellectual Property Law Firm in South Africa.

The rest of this post is a quote, but for legibility purposes I won't put the quote tag around it - the original authors were the law firm involved and Don MacRobert of Adams and Adams (note: "Madiba" is another name of Nelson Mandela):

A person applied for a trade mark at the Trade Mark Office in Pretoria. The mark consisted only of numbers 46664, which was Nelson Mandelas's cell number whilst in prison. The Nelson Madela family instructed it's legal advisor to object and the following is the Letter of Demand that was sent to the other side:

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Trade Mark 46664

(as said "Four Triple Six Four")

The official records show that you have applied
For trade mark "46664" - so we have spied
Your wide speculation gives us no clues
Whether you will use on hats, clothes or simply just shoes.

We will at this stage refrain to mention
Whether you have the required bona fide intention
Of using the mark for your broad specification
Under the test of reasonable justification.

No - our clients are the Mandela Foundation
You must know them - you agree without hesitation
It goes further than just the client we named
Built on Nelson Mandela - and he's world famed.

Now the numeral which you are trying to claim
Is associated with Madiba - just let me explain
Whether said by word or digit - it matters no more
He's the sole owner of "Four Triple Six Four".

We all know how Madiba was caught
At the treason trial his pleas came to nought
The country was really something to cry for
Our freedom he said he was prepared to die for.

The presiding judge therefore made a finding
Passing sentence which was forever binding
Sent to Robben Island on Cape Town's foreshore
Jailed for life in cell number 46664.

Since his release we were not at all hesitant
To elect him our first democratic President
And for the Nobel there was no hesitation
For that Peace Prize based on his world reputation.

A passing-off action requires us to show
A reputation so wide that all must know
But not his name only - there has to be more
To claim ownership in number 46664.

This we beleive is easy to do
It's known far and wide - not just by a few
Robben Island has of course been proclaimed
A national monument because it's so famed.

Thus - daily there are thousands who flock
To view Robben Island from Cape Towns's dock
They get shown around prison then peep through the door
Into that notorious cell no. 46664.

So "What's in a number" do I hear you say
Well this is so special we claim if we may
A prima facie case, just as in tort
Reducing your version with problems so fraught.

Our instructions are clear and without more ado
There is only one thing that is now left for you
We call on you forthwith to withdraw
Trade mark number 46664.

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Note: the trade mark application has now been withdrawn.

Ian

Forum Owners and the Law

There have been some pretty "authoritative" statements relating to cyber law and Forums that I think are misleading at best and need to be cleared up.

Here are some of the issues:

A common-carrier is not generally liable for statements they are involved in disseminating any more than the phone company would be. This is legislated in the US via the CDA s. 230 and is acknowledged in Canada, UK and Austrailia under common law, at least.

A distributer is also usually not liable. This covers newspaper carriers, news stands, etc.

A publisher/editor very often IS liable. The issue becomes: is a forum a provider, distributer or publisher?

The answer, IMO, is it can be any of them. Let me explain.

If you practice no effective control over the content of your site, then you are generally considered a distributer or common-carrier. If you practice complete control (for example, pre-moderating) then you would be considered a publisher and would typically be liable.
Forums tend to fall in between these two extremes, and therefore blanket statements regarding liability (or lack thereof) are highly misleading.

It's all about control.

Rule of Thumb: If you have control, you have liability. If you don't and can't be reasonably be expected to, then you don't.

This is basic to most legal systems world-wide, not just for libel but for most other torts and a good portion of criminal law. There are some exceptions, but usually only in the case of clear legislation that overrides this principle on purpose, and they are usually only constitutional if the potential negative results of a wrongful application are minor (ie a regulation resulting in a fine, as opposed to a jail sentence). It's strongly related to the principle of mens rea.

Here are some examples of someone saying libelous things about someone else on a forum and the probable result under different circumstances. Lets assume that the statements are libel for now to make things easy. The stated results are the most probably result given current rulings, but should not be considered definitive (anything that isn't a ruling by a supreme court should not be considered definitive).

1. The forum is pretty much an internet newsgroup with anonomous users, absent administrators (or ones that only monitor uptime, rather than content) and no moderators. Result: Forum not liable as common carrier in US, in the UK it's the Internet Defense, or "innocent dissemination".

2. The forum does not pre-moderate, but has a group of moderators and admins reserve the right to edit posts. Result: Forum not Liable in US (Schneider v. Amazon.com, Inc.) I suspect it might be liable in other places, but there is no clear case law yet that I could find. The UK puts the onus on the defendant rather than the plaintiff as in the US, so I suspect they would be liable in the UK. In the UK, you pretty much have to prove complete "innocent disemination" or you fall into the other side of things and are liable

3. The forum requires a login and tracks users, and all posts are pre-moderated or checked by an editor before posting. Result: Forum liable as publisher/editor

4. The forum does not pre-moderate, but has an active group of moderators and admins who routinely remove libelous material and the libelous material "got through". Result: forum liable, but can protect itself by removing libelous material quickly when brought to it's attention In the US, a distributor of defamatory material who is not primarily responsible for the material's content is liable only if that distributor knew or had reason to know of the material's 'defamatory character. Many forums fall under this group.

5. The forum does not pre-moderate, but has an active group of moderators and admins who do not remove libelous material but do actively remove other material.Result: Forum liable since the decision NOT to edit is editorial in nature, rather than oversight or mistake. I believe forums that agressively "out" spammers and assorted alleged scum fall under this category.

6. The forum does not pre-moderate, and has an group of moderators and admins who frequently add or contribute libelous material. Result: Forum liable as publisher as well as author.

In all cases, the original party stating the libel is liable (Tambwo v. Calvin). However, in cases where liability is joint and severable it's usually easiest to go after whoever has the most money or is easiest to find, which is often the Forum, especially when it's hard to track down the original poster.

Ironically, the forum owners biggest asset, it's moderators and administrators, is also it's largest point of potential liability. Although moderators are often not employees, they can be held to be agents, and therefore can result in the liability of their principle. They are acting on behalf of the forum with knowledge and permission of the owner and therefore can cause liability to arise. So you could find yourself in trouble if you (as owner) or a moderator/admin chimed in and added to the libelous thread, since that not only makes them liable individually, but shows an editorial control and decision regarding the original post (the decision not to edit, in this case).

I'm not certain what would happen if a mod/admin told the original poster that their post was a bad idea to post, but chose not to delete or edit it. I think it would have to be dealt with on a case by case basis and would hinge on what was "normal procedure" for the forum in question.

The above doesn't even get into the issues related to the international aspects of the internet. The US rule is that you need to have a firm nexus in order to be sued in a different jurisdiction from the forums "home" ( Stanley Young v. New Haven Advocate, et al.) But an Austrailian ruling about a month ago has challenged that. (Dow Jones). basically if you have a substantial number of subscribers/readers in a country, that's enough to form the nexus for that country, was the ruling.

If a forum has members in China, they can be sued under Chinese law, according to this. Canada is already leaning towards this concept, and I suspect most other countries will, as well. It's unlikely they will simply accept the highly US-centric (and state-specific) rule the US uses. I suspect also that it's a matter of time before the US changes it's mind, as well, if only to allow it's citizens to sue foriegn publications diseminated on the internet. Right now they can't, and I doubt that will last for long.

Naturally, all this assumes that the statements are truly libel. If you "out" a spammer and they really are a spammer, then you have the defense of truth. This isn't the time or place for a discussion on what libel is or isn't, so I'll stop now.

Ian

Let's discuss the definition of Ethical.

One way I clear up confusion with definitions is to ask whether or not your argument or definition would make sense in another language. After all, if it's an English only issue, then you are talking semantics, not logic.

Ethics is a code of social behavior based on a concept of right or wrong, morals is a code of personal behavior based on a concept of right or wrong.

Example, you ask? Ok. Easy. Lawyers have a code of conduct that involves not disclosing the wrongdoing of a client (unless a life is in immediate danger - ie a believable threat to kill or do serious harm). Morally, we would be expected to report someone who has admitted guilt to a serious crime, but ethically, we (lawyers) cannot because by doing so it would undermine the legal system. Doctors run into issues like this on things like abortion and suicide, and priests with confessions, and so forth.

The point is that a Ethics are a social or external set of rules and morals are a personal or internal set. Yes, it's great when the two are the same, but sometimes it doesn't happen, nor should it.

Want an example of that? Morals include religious beliefs. What happens when those morals are imposed on a legal (ethics) system?

Sometimes you get good things like anti-slavery laws, sometimes you get things like the Taliban and the Spanish Inquisition. What happens when you impose ethics on morals? Sometimes good things, like freedom of religion, and sometimes bad things like Nazism and Communism. The point is that the two are different, and failure to recognise this causes a lot of harm in the world.

You can be ethical and not be moral, and you can be moral but not ethical. Just because you follow all the rules doesn't mean you are a "good person", anymore than breaking some rules automatically makes you a "bad person". The world is complicated. Get used to it, it gets worse as you get older.

But Ian, we are talking about SEO here. Ok, when you agree to play a game you agree to play by the rules. Don't like that, fine, but it's not ethical. By playing by the rules I mean "big picture" rules. Regulations don't usually count. Just because Google suggests that SEO's offer a moneyback guarantee doesn't mean you are unethical if you do not.

But the purpose of an effective search engine is to serve searches. That's it. Not maximizing your advertising dollars, not sending people to spammy sites, and not tricking people into thinking your site is more relevant to their search than it is.

This is ethics. If your personal moral code suggests that people should only be sent to sites that have been approved by your local church, synagogue, or special interest group, then that's a moral issue and is different from ethics. You can trick people for what you believe is their own good and still be moral (unless your personal morals prevent it) but you can't call it ethical. And doing it for money or fame is unlikely to even be moral.

If people continue to have problems with this because they were brought up without being taught clearly about morals and ethics, then by all means use different terms like Code of Conduct or Search Engine Approved Business Practices or white/black hat or whatever. Just don't pretend that thay are the same and then base your arguement or justify your behavior on it.

"The ends justify the means" arguments make me cringe.

The problem with this attitude in SEO is an issue of responsibility, not effectiveness. We have already seen what happens if you "trust" webmasters to decide whether their site is relevant or not.

I did a search (on webcrawler) for "disney kids games" a couple of years ago and the top ten sites were . I have small children and made a choice to use Google when it came out because now the same search brings up Disney.

By giving the control to the site owners you remove my ability to choose what kind of results I want, and instead replace it with the sites someone else wants. Googles popularity is not based on how many websites like their results, but rather on how many searchers like the results. Like me.

If I found out Google started allowing sites to push their wares without some sort of controls, I'd go elsewhere, as is my right as a consumer. And you can bet there would be some engine out there who would be willing to serve my needs, and others like me.

The problem is that if you (as a search engine) are asking me to trust you, you are also asking me to trust the owners of those sites. Unfortunately, you can see why I don't. Nothing personal.

Googles rules try as much as possible to eliminate the ability of a site owner to unilaterally decide how important and relevant their own site is. Attempts to subvert this process are unlikely to be popular or effective, since it betrays the trust the searchers have in the results. Betrayal of trust is unethical. For many people it is immoral, as well.

Does it matter that a site that uses these techniques may actually be better focused and relevant that those that would have ordinarily shown up. NO. Setting up "rules" based on "exceptions" is a recipe for failure. Webmasters had their chance. They blew it.

Let me ask this. What would happen if "everyone" did this? What would be the result? Would it be an improvement? Assuming that only "ethical and professional" SEO's and webmasters would do this is laughable.

Final Point: Why are people interested in these tactics on Google? Why not one of the Gator corporations FFA link sites? Or a search engine that doesn't check for this? Why make life hard?

The reason is Google is highly successful and popular because of the results it serves. Therefore it is crazy to try to subvert those results. Doing so would remove the reason you wanted to do it in the first place - ie it's popularity and relevence.

If you don't agree with how Google does things, simply start your own SE that follows your own preferences - if it's a good idea, people will start using it. Hey, it worked for Google! But wanting to play a game because it's rules make it popular and then trying to subvert the rules is cheating and unethical, and it ruins it's popularity, which was the whole idea behind playing that game in the first place.

Wanting the advantages of a set of rules without wanting to take the responsibility for obeying the rules is immature and ineffective. Not personal, just food for thought.

How I Became an SEO (Humor)

Note: Recent post by me in response to a thread about how unsophisicated many SEO's are...

I was jest out on mah back 40 shooten at some grub on the run anna city-feller come over an' tells me my new hoity-toity laptop looked pretty fancy.

So I'm, thinken "jeez! I don't want this feller to think I'm a hick, but I don't even know how to turn dis thing on! I jest won it at bingo last month!"

But then I member'd it was useful for finding that engine block I been look'n for all year. It was all growed over in weeds and I couldn't find it anywhar, so I started tossin the laptop into every bush I could see until, shore 'nuf, I hear'd me a clunk and there it was! My laptop sitting right on toppa mah engine block! Gowllllee! That was neat!

So den I went down to the local farmers market an' started helpin' out alla mah friends and kin. I'm the most famous guy around for finding engines in the weeds.Maybe I could impress the city feller with that story.

So I sez, "Yup! I use dat alla time searching for engines down at the market!"

An' then he got all excited like. He said "you do search engine marketing?!"

An' I said "Yep! I'm the best around, dontcha know!"

Then this feller got all happy and then changed the subject. He started talkin about his webs and stuff. I figure he's got a spider problem. critters. But my missus makes me kill them alla time, so I'm purty good at it. I put out bait an' make them think I'm friendly-like, and den stomp on them when they come out.

So I tells him, "I kin help y'all with that spiderin' issue yew have, if you like. I know how to get dem to like me"Then the feller gets all happy and asks me how much it would cost him for my services every month! Now, I figger they guy is crazy, ya know? Who pays someone to stomp on spiders alla time? Must have a lot of em....

So I go along with joke, an' say "a hunnerd grand a month!" and then get ready to laugh with the guy.

He jest nodded his head, pulled out his fancy suitcase-thing, and wrote a check right there ona spot!

So I packed my mah car, and moved to Bevery....Hills, that is.

And that's how I got into dis business. I figure anyone who can git someone to give them a hunnerd grand just for dealin wit der spiders is pretty sofis.. sofic.. sofistikated.

After all, I got money for it. Means I'm a professional, hey?

An' dats how I became a professional search engine marketer and spider problem fixer.

SES Toronto

Well, I just got back from SES Toronto and had a great time! I met lots of people and my presentation went pretty well, considering it was the last presentation of the last day.

On interesting thing while traveling to T.O. - I took WestJet. The main reason i took it was because the price was right (and it's a local company) but I must say I was blown away by the service and friendliness of the staff!

I've done a lot of travelling and frankly Air Canada is a national embarrassment, as far as I'm concerned - rude staff, lousy service, etc. I don't exactly cry when I hear them complaining that they are losing money - it's called the free market at work, people.

I remember one trip from Beijing to Vancouver on AC where I sat next to an old chinese lady and what appeared to be her granddaughter. The flight crew had turned on the air conditioning full blast and it was chilly - even for a Canadian. The poor woman was uncontrollably shivering and obviously freezing. Finally her companion spoke up to one of the pit fiends masquarading as flight attendants and asked if they could turn up the heat or get a blanket or something. The flight attendant snarled back that they don't change the temperature for anyone and stalked off. I was truly embarrassed at sharing the same nationality as this person - some welcome to Canada! When it became clear that Air Canada's finest wasn't going to be back with a blanket, I gave her mine. Unbelievable.

This is, unfortunatly, not an exception. It was also the last time I voluntarily flew on AC. So when it was time to go to Toronto I booked a flight on Westjet and showed up at the airport, hobbling along with my right leg in a space boot (broken ankle - long story) and was met by a very friendly counter clerk who called over there "Folks Wagon" to give me a lift to the gate without me even asking. I was met at the plane by "Bob" who was the funniest, most personable attendant I've ever met.

Let me put it this way - I actually stayed awake during the safety speach - LOL. The Flames were playing and the captain got on the speaker several times to give updates on the game - and when they won there was lots of cheering and Bob organised us doing the "wave" up and down the aisles. Lots of fun. AC, RIP, Long live Westjet!

Welcome to my new Blog! My name is Ian McAnerin and I'm the owner/CEO of McAnerin Networks Inc, an Internet Promotion company with offices in Calgary, Alberta, Canada and Las Vegas, Nevada, USA.

I live in Calgary - guess where I like to have the Annual General Meeting for the company... ;)

I'm a father of 3 (Isaac, Tasmyn, and Kestra) and happily married (Leah). Ok, that's pretty much the sum total of an intro you'll get here. If you are interested in more information, you'll either have to read the whole blog and figure it out for yourself, or actually ask me.

Oh, as a professional SEO (Search Engine Optimiser) and Moderator on the High Rankings SEO forum, you'll probably see a LOT of Search Engine related news and rants here. I'm a "white hat" SEO so various spammers will get it with both barrels on occasion...

After all, that's the whole fun of having a blog in the first place.

Cheers,
Ian