New Blog – en.zeropointfield.ch

Hello,

I haven’t written anything for quite some time on this blog. This is partially due to my preparing a migration to a (shared) hosted solution. This is now done, and I have started writing posts (in English) at http://en.zeropointfield.ch.

This blog, zeropointfield.wordpress.com, will not see any new posts, but I’ll leave the old posts in place and may or may not migrate them to the new site.

Best Regards

Parvaneh

 

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Paul the octopus choses the iPhone

Ask the Octopus!

Ask the Octopus!

Paul the octopus choses the iPhone

Paul the psychic octopus who successfully predicted the outcome of the worldcup matches has found a new occupation: As a iPhone app.
Not sure which of two option to choose? Pizza or Sushi, theatre or cinema? Don’t worry, ask Paul to chose for you. You can even ask him whether it’s worthwhile to install the app or not (supposedly after you’ve already bought it…).

The application is called ‘Ask the Octopus’ costs $0.99 and is available for download at the iTunes store.

Source: Le Matin

Swiss Court denies Apple Trademark Application for IPHONE

In a ruling of November 24, 2009 the Swiss Federal Administrative Court has denied Apple’s trademark application for the name “IPHONE”. As Macworld wrote:

Apple’s appeal for reconsideration of its trademark application for the word “iPhone” has been rejected by the Swiss Federal Administrative Court, which maintained that the term is a non-distinctive word for which Apple could not be granted a trademark.

Right, iPhone not distinctive? Let’s check what the Court actually said.

The Court did point out that part of the name “IPHONE” was “phone” which couldn’t be used as a trademark. It then went on to check if the addition “I” does anything to make “IPHONE” distinct enough from “phone” to allow for a registration as a trademark. The relevant part of the ruling reads:

3.3.3 Wird das Zeichen “IPHONE” gesamthaft und in Bezug auf die beanspruchten Waren der Klasse 9 betrachtet, so ist die Interpretation des Zeichens “IPHONE” als direkter Hinweis auf ein Telefon mit internetbezogenen- oder anderen informations- bzw. kommunkationstechnologischen Zusatzfunktionen naheliegend. Der Buchstabe “I” könnte aber allenfalls mit “Ich” und das Zeichen “IPHONE” als “Ich telefoniere; Ich rufe an” interpretiert werden. Allerdings ist im englischen Sprachgebrauch “I call” für “Ich telefoniere” üblich. Für einen durchschnittlichen Abnehmer bleibt aber gleichwohl unklar, was der Buchstabe “I” im Zusammenhang mit dem Begriff “phone” genau bedeutet. Diese Bedeutung ergibt sich zwar nicht sofort aus der Marke selbst, jedoch liegt eine technische und elektronische Bedeutung des Zeichens “IPHONE” auf der Hand. Unabhängig von der genauen Bedeutung des Buchstabens “I”, trägt dieser als solcher jedoch nichts Wesentliches dazu bei, den beschreibenden Charakter des Markenbestandteils “phone” abzuschwächen. Das Zeichen wird durch die Kombination des Einzelbuchstabens “I” mit dem unterscheidungsschwachen und für den Verkehr unentbehrlichen Markenbestandteil “phone” somit nicht unterscheidungskräftig.

3.3.3 When the sign “IPHONE” is examined overall and in relation to the claimed products of class 9, the interpretation of the sign “IPHONE” as direct hint to a telephone with additional functions based on Internet or other information or communication technologies, is obvious. The letter “I” could, however, be confused with the word [personal pronoun] “I” and the sign “IPHONE” could thus be confused with “I phone”. However, in English language usage mostly “I call” is commonly used for that purpose. Nevertheless, for an average user it remains  unclear, what the letter “I” actually means. The meaning is evident, however, not from the sign itself, but from the technological and electronic meaning of the sign “IPHONE”. Notwithstanding the exact meaning of the letter “I”, it does, as such, not significantly contribute to alleviate the descriptive character of the sign-part “phone”. The sign, even with the addition of the letter “I”, therefore is too weakly descriptive  for a term that is indispensable for communication and is therefore not distinctive.

It seems to me that the reasoning is a bit weak. Especially since, as Apple noted in the proceedings, that such signs as “IDOCUMENT”, “IPROJECT”, etc had been granted a trademark by the same courts that were now denying “IPHONE” the trademark registration.

The Federal Administrative Courts explains this away by confirming the lower court’s view:

Die Vorinstanz äussert sich in ihrer Stellungnahme vom 14. Juli 2009 klar zu ihrer Praxis und legt dar, dass von vereinzelten Fehleintragungen, teilweise aufgrund von Entscheiden der ehemaligen Rekurskommission, auszugehen sei

The lower court in an opinion of July 14, 2009 clearly comments its custom and explains, that this is a case of isolated mis-registrations, caused by erroneous decisions of previous commissions.

I remain unconvinced. So they changed their ‘customs’ somewhere between the last “IWHATEVER” and the “IPHONE” trademark application? I am not sure whether this is already final, since it could be appealed to the Swiss Federal Supreme Court.

Text of the ruling (German) is here.

Comcast v. FCC No. 08-1291

Quite interesting ruling from the United States Court of Appeals
For The District of Columbia Circuit. The FCC argued that it had authority to regulate a specific service provided by Comcast on its network based not on an express delegation of power, but on its ability to claim ‘ancillary jurisdiction’. The FCCs claim for ancillary jurisdiction is based on 47 U.S.C. § 154(i), which states that the Commission may “perform any and all acts, make
such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the
execution of its functions.”

However, the appeals court dissects that claim, by first noting that:

Indeed, in its still-binding 2002 Cable
Modem Order, the Commission ruled that cable Internet
service is neither a “telecommunications service” covered by
Title II of the Communications Act nor a “cable service”
covered by Title VI. (p. 5)

The court also has a test that can be use to determine whether ancillary authority may be invoked:

“The Commission . . . may exercise ancillary
jurisdiction only when two conditions are satisfied: (1) the
Commission’s general jurisdictional grant under Title I [of the
Communications Act] covers the regulated subject and (2) the
regulations are reasonably ancillary to the Commission’s
effective performance of its statutorily mandated
responsibilities.” (p. 8)

The court makes it clear that ancillary authority does not mean unrestricted authority:

“Though afforded wide latitude in its supervision over
communication by wire,” the Court added, “the Commission
was not delegated unrestrained authority.” (p. 21)

It is important to note that statement of Congressional policy alone does equate to a proper delegation of authority:

Instead, the Commission maintains that congressional
policy by itself creates “statutorily mandated responsibilities”
sufficient to support the exercise of section 4(i) ancillary
authority. Not only is this argument flatly inconsistent with
Southwestern Cable, Midwest Video I, Midwest Video II, and
NARUC II, but if accepted it would virtually free the
Commission from its congressional tether. (p. 23)

Finally, the court makes clear that the Commission has broad authority to regulate, but that this authority is not unrestricted:

It is true that “Congress gave the [Commission] broad
and adaptable jurisdiction so that it can keep pace with rapidly
evolving communications technologies.” Resp’t’s Br. 19. It
is also true that “[t]he Internet is such a technology,” id.,
indeed, “arguably the most important innovation in
communications in a generation,” id. at 30. Yet
notwithstanding the “difficult regulatory problem of rapid
technological change” posed by the communications industry,
“the allowance of wide latitude in the exercise of delegated
powers is not the equivalent of untrammeled freedom to
regulate activities over which the statute fails to confer . . .
Commission authority.” NARUC II, 533 F.2d at 618 (internal
quotation marks and footnote omitted). Because the
Commission has failed to tie its assertion of ancillary
authority over Comcast’s Internet service to any “statutorily
mandated responsibility,” Am. Library, 406 F.3d at 692, we
grant the petition for review and vacate the Order. (p. 36)

I think the court is right, however the consequences are a bit unnerving, as it makes the Internet a ‘private’ space in which corporations can set the rules as they seem fit. So they could regulate away free speech, right to privacy or protection against unreasonable searches and the like, it is their network, after all.

I’d say Congress needs to act urgently on that and close that regulatory gap.

The good news is that the Federal Reserve Board may also take note that wide latitude given to an agency – which the Board is, while the Federal Reserve Banks are not – does not mean ‘independence’ from the lawmakers, i.e. Congress.

The New York Times runs this story as well.

Russia ready to allow CIS Broadcasters on its Territory

President Medvedev has indicated that Russia is ready to allow broadcasters from CIS countries (those are most of the members of the former Soviet Union) to broadcast on its territory, provided that the CIS countries would also allow equivalent access to air on their territories to Russian broadcasters.

According to Medvedev the matter is a good stage of advancement, however concrete negotiations with specific telecom providers have yet to take place.

“I have discussed this topic with a number of heads of CIS states, they express a desire to participate, at least, through a political agreement on the presence of the national broadcaster on our satellite,” – said the President Medvedev.

President Medvedev also said, that a large number of native Russian speakers are still living scattered in the CIS states and for these people access to Russian speaking programs and culture was important. Also, a great number of immigrants from CIS countries were living in Russia who would like to have access to TV programs in their native language, representing their culture and customs.

Source: ITAR-TACC

Swisscom caught up in Italian tax scam probe

Noticable news per 18.02.2010 via swissinfo.ch:

An Italian subsidiary of Swiss telecommunications firm Swisscom has been caught up in a tax fraud and money laundering investigation with alleged mafia links.

If the “by far most important provider of telecommunications and IT services in Switzerland” – quote from the Swisscom site – is going to be linked to the Italian mafia, then we have indeed come a long way.

This could be an interesting story. Especially since the former CFO of Swisscom is currently under investigation as well.