IMPACT®

German search engine keywords legal update

Those with an active online presence in Germany should check out Class 46's report on a final ruling by the German Courts on a search engine keywords case. In summary the German Courts have held that using a competitor company's name as a search engine keyword (e.g. Google's AdWords service) is lawful provided it's clear that the advert in question is for the advertiser's own products/services, not those of the competitor.

Lists lists lists

The Observer on Sunday has published a list of the "world's 50 most powerful websites". There's some good blogs on there that are well worth a look if you get chance today.

Perhaps unsurprisingly given the state of the web today and that the compilers of the listern are English speakers, the list is dominated by US blogs and technology blogs (and combinations of the two), plus quite a few (US) political blogs. Amongst the UK blogs is Holy Moly, apparently a celebrity gossip blog, and the Offside, a football blog, and the F Word, a blog about "comtemporary UK feminism". With the rapid rise in internet usage across the world, it'll be interesting in a few years time to see whether such lists are still US dominated.

No law blogs make it into the Guardian's list. However, we're pleased that Freeth Cartwright, the firm behind IMPACT®, made it into a list produced by another Sunday newspaper; the Best 100 Companies to Work For 2008. See our press release for more information.

No innocent infringement defence for Community Designs

The High Court has just delivered a judgment on design rights that looks to establish the Community Registered Design as a very useful right for designers. The case in question is J Choo (Jersey) Limited v Towerstone Limited. I set out below key details of the case.

Memory trick shows that encryption isn't the answer to data security

The question of how to put personal data and other sensitive (in the plain English sense) information on portable devices and storage mediums such as laptops, CDs and memory sticks whilst keeping that data secure and achieving compliance with data protection laws is one that organisations have to tackle. Encryption technology is increasingly being deployed by organisations for their laptops and portable storage, and appears to be regarded by many as the total solution to these issues.

To quote Wikipedia:

• Encryption is "the process of converting ordinary information (plaintext) into unintelligible gibberish (ie, ciphertext).
• Decryption is the reverse, moving from unintelligible ciphertext to plaintext.
• A cipher (or cypher) is a pair of algorithms which creates the encryption and the reversing decryption.
• The detailed operation of a cipher is controlled both by the algorithm and, in each instance, by a key

The BBC News website yesterday reported on a US survey that demonstrates how hackers can gain access to encrypted data on computers by switching off a computer, immediately switching on, and then doing some clever geeky stuff to gain access to the computer's memory, the RAM. Within the RAM, the encryption key can be found, allowing the stored data to be decrypted.

This hacking technique raises important questions for organisations that place personal/sensitive data on portable computers (e.g. laptops).

IMPACT® opinion

More and more people within organisations are using laptops - just look at how many have gone missing in the public sector that we know about. Then give thought to how many more in the private sector have gone missing that we will never hear about - there must be so much lost or stolen personal / sensitive data floating around out there.

The above news takes away the comfort blanket offered by encryption technology and forces organisations to focus on:

• who they allow to process data
• how that data is processed
• how it is protected

Finally, organisations must consider how much data is processed; remember the Data Protection Act principle that personal data must not be excessive in connection with the purposes for which it is processed. With technology not capable of offering total protection for stored data on portable devices, organisations must minimise the risks and damage associated with data loss/theft by minimising the amount of data out there.

Ann Critchell-Ward and Alex Newson

Spot the difference

One's an Apple iPhone, one is a prototype phone from a company called Meizu.

According to a report on Tom's Hardware Blog, at the CeBit trade show German police confiscated these Meizu phones and marketing materials, and are due to announce similar action against other new devices that bare an uncanny resemblance to Apple's product. Whilst Tom's blog calls the Meizu phone "blatant product piracy", whilst Engadget is more reserved, calling the iPhone Meizu's "muse".

We await news of what legal action Apple will be taking against Meizu and others.

Acknowledgement: image from Engadget

New Phorms, new privacy concerns

There's a storm brewing online over the activities of Phorm, a company that specialises in delivering adverts online. Lots of companies already do that of course; what has caused all the fuss is that Phorm works by tracking the internet surfing habits of the customers of certain Internet Service Providers (ISPs) and delivering adverts based on those activities.

Phorm has signed deals with BT, TalkTalk and Virgin Media allowing it to place equipment at those ISPs, recording the surfing activities of users. When a user goes on to a web page with a Phorm-connected advert, the user will be presented with an advert tailored for their surfing habits.

Charles Arthur at the Technology Guardian has written a great article on the Phorm scheme. In the article, he quotes Phorm on the various privacy bodies that it claims have given the seal of approval to its scheme, and the user perspective. A key point made by Phorm is that it doesn't store user's IP addresses or browsing histories; surfing activities are put into various categories and this is then placed into a cookie on your computer. Countering this is the arguments made by outraged users and privacy campaigners. The Technology Guardian piece quotes a comment it received from someone going under the name Clanger9:

"The fact that they use this data to provide 'targeted advertising' and claim to discard it afterwards is irrelevant. All your browser content, webmail, forum postings, everything is being analysed by servers owned and controlled by a third party."

The article also refers to the AOL search results scandal last year, where searches were disclosed online by AOL, allowing the inquisitive to identify the makers of those searches despite those searches being theoretically anonymous (see our post on the resulting legal action).

Furthermore, at least some of Phorm's activities will inevitably include the processing of personal data, meaning that data protection laws apply. As Peter Wainman over at Naked Law highlighted in January, the Article 29 Working Group of data protection commissioners has stated that IP addresses can constitute personal data. Even if Phorm can reassure users over their privacy concerns, it will therefore have to tread carefully as far as data protection is concerned.

Do Androids dream of capturing the mobile phone market?

Not an IP or IT law story as such, but here's a quick heads up on an emerging mobile phone trend that may be of interest to IMPACT® readers.

I'm not talking about sleek new designs for phones, interesting as they may be (and capable of being protected by registering their designs, either as UK Registered Designs or Community Registered Designs). Instead, the focus of this post is on mobile phone operating systems.

Having captured a fairly respectable share of the desktop PC operating system market, the open source and free software movement is now looking to do the same with the operating system market for mobile phones. At present, that market is dominated by Symbian, whose OSs are found in the phones of most major manufacturers.

There are 2 main groups producing free software/open source OSs for mobile phones. The first is the LiMo Foundation, the 'LiMo' standing for 'Linux Mobile'. LiMo has announced that its OS will be launched this month and at last month's Mobile Phone Congress reportedly announced that 18 phones would be running on LiMo. The LiMo OS is subject to a standard licence called the "Foundation Public Licence". I haven't read it in enough detail to see whether it qualifies as "free software" or "open source", but the FPL in essence does appear to fall into at least one of these two categories. People producing software for LiMo phones don't have to licence that software under the FPL, but LiMo's IPR policy does contain various rules about  licenses.

Grabbing more technology news headlines has been Android, the "open handset alliance project" launched and funded by Google, and sometimes referred to as the "Googlephone". Although various major phone manufacturers including Samsung have already announced they will be launching phones that run on Android, Symbian has already said that it's not worried about Android. Google has issued a licence for Android with some open source characteristics, but looking to be very much Google's baby. Being in control of the Android site and licence, Google also has control over Android's IP policies going forwards. The Googlephone does look like it could prove to be a very nice OS; Pocketpicks has spotted a video of a phone running Android on the BBC website.