I havenāt read the full judgement of the Land Rover Defender case, where Jaguar Land Rover sought to protect the shape of the original Defender under trade mark law, to prevent Ineos from proceeding with the Grenadier.
According to Bloomberg, as reported in Automotive News, āThe judge upheld the findings by the IP Office that while differences in design may appear significant to some specialists, they āmay be unimportant, or may not even register, with average consumers.āā
On the face of it, this would appear to be a reason for upholding JLRās claimābut the Indian-owned Midlands car maker seems to have muddled the cause of action it was supposed to have taken. Iāve already taken issue with its inability to protect the L538 Range Rover Evoque shape in China under that countryās laws, and while that judgement was eventually overturned in JLRās favour, the company could have saved itself a great deal of stress had it filed its registration in time. It had been ignorant of Chinese law and wasted time and resources pursuing Ford Motor Company affiliate Landwind for its Range Rover Evoque clone, the X7. I sense Landwind could have afforded the ultimate fine.
Here I think arguing copyright might have been a better method. The Land Rover Station Wagon shape hails from 1949, and with 75 yearsā protection, the company is covered till 2024. You donāt need to show a registration, and the onus of proof, once objective similarity is found, is on the defendant. That test of objective similarity, unlike that in trade mark, is not based on what the average consumer thinks, but on what specialists think. And the scenes Ć faire doctrine has been adopted by precedent in the UK.
Maybe that was the game plan all along: to fail here, and to proceed using copyright later. Iām sure the plaintiff knows this. Now, armed with the judgementās findingsāthat the differences are insignificantā Jaguar Land Rover can pursue a copyright claim using these as evidence.
To me, the Grenadier is sufficiently similar. Some point to the Puch G as another source of inspiration but I canāt see it. And since a court has ruled that they canāt see it, either, then Jim Ratcliffe and Ineos had better not break out the champagne just yet.
What a pleasure it was to be back on The Panel on Radio New Zealand National today, my first appearance in a decade. That last time was about the Wellywood sign and how I had involved the Hollywood Sign Trust. Iāve done a couple of interviews since then on RNZ (thank you to my interviewers Lynda Chanwai-Earle and Finlay Macdonald, and producer Mark Cubey), but it has been 10 years and a few months since I was a phone-in guest on The Panel, which I listen to very frequently.
This time, it was about Hong Kong, and the new national security legislation that was passed last week. You can listen here, or click below for the embedded audio. While we begin with the latest development of social media and other companies refusing to hand over personal data to the Hong Kong government (or, rather, they are āpausingā till they get a better look at the legislation), we move pretty quickly to the other aspects of the law (the juicy stuff and its extraterritorial aims) and what it means for Hong Kong. Massive thanks to Wallace Chapman who thought of me for the segment.
I said it a long time ago: that the Carlos Ghosn arrest was part of a boardroom coup, and that the media were used by Hiroto Saikawa and co. (which I said on Twitter at the time). It was pretty evident to me given how quickly the press conferences were set up, how rapidly there was āevidenceā of wrongdoing, and, most of all, the body language and demeanour of Mr Saikawa.
Last week emerged evidence that would give meāand, more importantly, Carlos Ghosn, who has since had the freedom to make the same allegation that he was set upācause to utter āI told you so.ā I read about it in The National, but I believe Bloomberg was the source. The headline is accurate: āNissan emails reveal plot to dethrone Carlos Ghosnā; summed up by āThe plan to take down the former chairman stemmed from opposition to deeper ties between the Japanese company and France’s Renaultā.
One highlight:
the documents and recollections of people familiar with what transpired show that a powerful group of insiders viewed his detention and prosecution as an opportunity to revamp the global automakerās relationship with top shareholder Renault on terms more favourable to Nissan.
A chain of email correspondence dating back to February 2018, corroborated by people who asked not to be identified discussing sensitive information, paints a picture of a methodical campaign to remove a powerful executive.
Another:
Days before Mr Ghosnās arrest, Mr Nada sought to broaden the allegations against Mr Ghosn, telling Mr Saikawa that Nissan should push for more serious breach-of-trust charges, according to correspondence at the time and people familiar with the discussions. There was concern that the initial allegations of underreporting compensation would be harder to explain to the public, the people said.
The effort should be āsupported by media campaign for insurance of destroying CG reputation hard enough,ā Mr Nada wrote, using Mr Ghosnās initials, as he had done several times in internal communications stretching back years.
Finally:
The correspondence also for the first time gives more detail into how Nissan may have orchestrated [board member] Mr Kellyās arrest by bringing him to Japan from the US for a board meeting.
Nissanās continuing official position, that Ghosn and Kelly are guilty until proved innocent, has never rang correctly. Unless youāre backed by plenty of people, that isnāt the typical statement you should be making, especially if itās about your own alleged dirty laundry. You talk instead about cooperating with authorities. In this atmosphere, with Nissan, the Japanese media duped into reporting it based on powerful Nissan executives, and the hostage justice system doing its regular thing, Ghosn probably had every right to believe he would not get a fair trial. If only one of those things were in play, and not all three, he might not have reached the same conclusion.
I donāt profess to be an expert on how Hong Kong law functions these days with its mix of old British ordinances and the laws made after 1997, but one thing that struck me with at least the news reports covering the criminalizing of insults against āMarch of the Volunteersā, the national anthem of the Peopleās Republic of China, is whether parodyāa fundamental part of free speechāwill still be permitted.
I donāt have a problem with the anthem being taught to children as it was sung long before 1949, the establishment of the PRC. It was a wartime anthem, which people like my father knew, having been born in the 1930s at the time of the SinoāJapanese War. It is historical, and it has meaning. It is arguably even more familiar to older Chinese than the Republic of Chinaās anthem generally sung on the island of Taiwan. But, even back then, āMarch of the Volunteersā had picked up this parody:
čµ·ä¾! č²·åæēččøč±č!
If I recall correctly, the parody emerged when the Communists and Nationalists were trying to entice the citizenry over to their side, and the Communists were promising food.
I wonāt go in to parody and its relationship to freedom of speech here; there are plenty of resources on it online.
But does it mean that repeating the parody lyrics would put me at risk in Hong Kong?
Of course it has escaped no one that the law was passed on June 4, a ballsy move by Beijing.
Meanwhile, a few members of the UK government have talked about giving BN(O) (British National [Overseas]) passport holders a pathway to British citizenship, leading some to say there would be a brain drain. What I will say here is: the British have talked about defending the rights of Hong Kong people under the joint declaration ever since 1997āindeed, even before, with the Blair-led oppositionāand nothing has happened. Iāve gone into my issues entering the UK with this passport before, so youāll excuse me if I say that actions speak more loudly than words. British politicians have been high on rhetoric for over two decades on this issue and I have no reason to believe the least trustworthy lot they have ever elected.
I disagree that they are interfering with Chinese affairs if they are simply looking after those that identify themselves as British, but at the same time I donāt think Beijingās foreign ministry has anything to be concerned about. The British have their own doorstep to think about, and the prospect of millions of Hong Kong Chinese heading there was too hard for them to stomach under Major or Blair, and I do not expect that attitudes have changed.
Not withstanding that I canāt edit my advertising preferences on Facebookāthey took that ability away from me and a small group of users some time ago (and, like Twitter, they are dead wrong about what those preferences are)āI see they now lie about what ads Iāve seen and clicked on.
I can categorically say I have not seen an ad, much less clicked on an ad, for the US Embassy.
Itās pretty hard for a person who doesnāt use Facebook except for work to have clicked on any ads on their platform.
And as Iāve largely quit Instagram itās highly unlikely I accidentally swiped and clicked on an ad there, too.
On the remote chance that I did, then it shows that either Facebookās or the US Embassyās targeting is appallingly bad since Iām not American. I doubt that the US Embassy would have had such a wide market as to include me.
I theorize, and I do so with zero proof, that Facebook is so deep in its con to claim certain advertising reach numbers that itās falsely attributing hits to random users across the site. These may have been hits done by botsābots that it endorses, incidentallyāand now they want to pin them on legitimate people.
Itās a hypothesis but given that Iāve been right about a few way-out ones (false user numbers, bot epidemics, malware downloads), Iām going to advance it. Now letās wait four years for this to blow up into something.
Above: The only way I can view my advertising preferences on Facebook is through the mobile version. But here they cannot be edited. (The web version won’t show them at all.) They are also quite wrong that these are my interests, but since when have they been right anyway?
Hereās quite a funny one for you this Easter weekend: Facebook apparently has filed suit against companies that do the following, according to Social Media Today.
ā¢ Companies that sell fake followers and likes, which Facebook has pushed harder to enforce since New York’s Attorney General ruled that selling fake social media followers and likes is illegal last February
ā¢ Two different app developers over ‘click injection fraud’, which simulates clicks in order to extract ad revenue
ā¢ Two companies over the creation of malware, and tricking Facebook users into installing it in order to steal personal information
In other words, Facebook has filed suit against people who do things that are variations of what Facebook itself does.
The first. This has long been proven by Veritasium, and one would hope the defendant points out that Facebook has endorsed such behaviour, and that its terms and conditions have generally meant squat. Facebook allows hate groups (hate speech is ācounter-speechā, they tell me), hates drag queens and kings, drags its heels in removing illegal content (eight clips of the Christchurch massacre are still on there, a year later), and preserves bots, fake accounts and phishing pages, all contrary to what their own terms and conditions say. These happen with such frequency that one might say they are Facebook policy.
Now, Facebook mightnāt do the second but it certainly extracts ad revenue from customers, and not necessarily fairly. Click fraud? How about audience fraud? Thatās been the subject of lawsuits against it. Weāve gone through this before on this blog, least of which is Facebookās lying about its user numbers. It cites heaps of people but we know among them are bots; and we know that it claims more people in certain demographics than there are people. I’ve said this for a long, long time.
Third: Facebook tricked users for years into installing a āmalware scannerāwith purposes it would not go into. But it essentially admitted their scanners collected data from users (as reported in Wired, ‘Facebook tells users when they agree to conduct the scan that the data collected in the process will be used “to improve security on and off Facebook”āāit seems reasonable to conclude this is personal information). The scanner never appeared in oneās installed programsā list, either, and in my case, knocked out my real antivirus software. We also know that when Facebook accused certain people of having malware, the company was lying. The scanner took a long time to run, so what was it sending back to the mothership? Conclude from all of that what you will, but tricking Facebook users into installing software that is hidden on a userās PC and takes data off it is right out of a fraudsterās playbook.
Given the amount of crooked activity that Facebook itself engages in, and the lies its team tells, criminals would be forgiven into thinking that it was a website that collected and ran scams, and that Mark Zuckerberg was a kindred spirit.
The hypocrisy remains strong at Facebook.
PS.:This fake page has been up for days, and its posts, promoting a phishing link, apparently do not violate Facebook’s standards. Duly reported, but what really is the point since Facebook seems to love these?
Iāll be interested to read the judgement, should it get to that point: Facebook is being sued over allegedly inflating its audience numbers, and COO Sheryl Sandberg and financial officer David Wehner are also named.
The plaintiff alleges that Facebook has known this for years. The suit dates from 2018 but there are new filings from the lawsuit.
Iāve blogged on related topics for the majority of the previous decade, and in 2014 I said that Facebook had a bot āepidemicā.
Finally another publication has caught on this, namely the Financial Times. The FT notes something that I did on this blog in 2017: āIn some cases, the number cited for potential audience size in certain US states and demographics was actually larger than the population size as recorded in census figures, it claimed.ā Its own 2019 investigation found discrepancies in the Facebook Adsā Manager tool.
The complaint also says that Facebook had not removed fake and duplicate accounts. Lately Iāve found some obvious fake accounts, and reported them, only for Facebook to tell me that thereās nothing wrong with them. On Instagram, I have hundreds, possibly thousands, of accounts that I reported but remain current. Based on my user experience, the plaintiff is absolutely correct.
Facebook only solves problems it puts its mind to, and all seem to be bolstering its bottom line. This is something it could have solved, and since itās plagued the site for the good part of a decade, and it continues to, then you have to conclude that thereās no desire to. And of course there isnāt: the more fakes there are, the more page owners have to pay to reach real people.
Over a decade ago, I know that it cost a small business a decent chunk of money to get an independent audit (from memory, we were looking at around NZ$6,000). Facebook doesnāt have this excuse, and that tells me it doesn’t want you to know how its ads actually perform.
As I said many times: if a regular person like me can find a maximum of 277 fakes or bots in a single night, then how many are there? Iām surprised that not more of the mainstream media are talking about this, given that in 2018 Facebook posted an income of US$22,100 million on US$55,800 million of revenue, 98Ā·5 per cent of which came from advertising. Is this one of the biggest cons out there? Hereās hoping the lawsuit will reveal something. Few seem to care about Facebookās lies and erosion of their privacy, but maybe they might start caring when they realize they’ve been fleeced.
A few thoughts about Twitter from the last 24 hours, other than āPlease leave grown-up discussions to grown-upsā: (a) itās probably not a smart idea to get aggro (about a joke you donāt understand because you arenāt familiar with the culture) from your companyās account, especially when you donāt have a leg to stand on; (b) deleting your side of the conversation might be good if your boss ever checks, although on my end āreplying to [your company name]ā is still there for all to see; and (c) if your job is āChief Marketing Officerā then it may pay to know that marketing is about understanding your audiences (including their culture), not about signalling that your workplace hires incompetently and division must rule the roost.
Iām not petty enough to name names (I’ve forgotten the person but I remember the company), but it was a reminder why Twitter has jumped the shark when some folks get so caught up in their insular worlds that opposing viewpoints must be shouted down. (And when that fails, to stalk the account and start a new thread.)
The crazy thing is, not only did this other Tweeter miss the joke that any Brit born, well, postwar would have got, I actually agreed with him politically and said so (rule number one in marketing: find common ground with your audience). Nevertheless, he decided to claim that I accused Britons of being racist (why would I accuse the entirety of my own nationāI am a dual nationalāof being racist? Itās nowhere in the exchange) among other things. That by hashtagging #dontmentionthewar in an attempt to explain that Euroscepticism has been part of British humour for decades meant that I was āobsessed by warā. Guess he never saw The Italian Job, either, and clearly missed when Fawlty Towers was voted the UKās top sitcom. I also imagine him being very offended by this, but it only works because of the preconceived notions we have about ‘the Germans’:
The mostly British audience found it funny. Why? Because of a shared cultural heritage. There’s no shame in not getting it, just don’t get upset when others reference it.
Itās the classic ploy of ignoring the core message, getting angry for the sake of it, and when one doesnāt have anything to go on, to attack the messenger. I see enough of that on Facebook, and itās a real shame that this is what a discussion looks like on Twitter for some people.
I need to get over my Schadenfreude as I watched this person stumble in a vain attempt to gain some ground, but sometimes people keep digging and digging. And I donāt even like watching accident scenes on the motorway.
And I really need to learn to mute those incapable of sticking to the factsāI can handle some situations where you get caught up in your emotions (weāre all guilty of this), but you shouldnāt be blinded by them.
What I do know full well now is that there is one firm out there with a marketing exec who fictionalizes what you said, and it makes you wonder if this is the way this firm behaves when there is a normal commercial dispute. Which might be the opposite to what the firm wished.
As one of my old law professors once said (Iām going to name-drop: it was the Rt Hon Prof Sir Geoffrey Palmer, KCMG, AC, QC, PC), āThe more lawyers there are, the more poor lawyers there are.ā Itās always been the same in marketing: the more marketers there are, the more poor marketers there are. And God help those firms that let the latter have the keys to the corporate Twitter account.
I enjoyed that public law class with Prof Palmer, and I wish I could remember other direct quotations he made. (I remember various facts, just not sentences verbatim like that oneāthen again I donāt have the public law expertise of the brilliant Dr Caroline Morris, who sat behind me when we were undergrads.)
Itās still very civil on Mastodon, and one of the Tooters that I communicate with is an ex-Tweeter whose account was suspended. I followed that account and there was never anything, to my knowledge, that violated the TOS on it. But Twitter seems to be far harder to gauge in 2019ā20 on just what will get you shut down. Guess it could happen any time to anyone. Shall we expect more in their election year? Be careful when commenting on US politics: it mightnāt be other Tweeters you need to worry about. And they could protect bots before they protect you.
Since I havenāt Instagrammed for agesāI think I only had one round of posting in mid-Januaryāhereās how the sun looked to the west of my office. I am told the Canberra fires have done this. Canberra is some 2,300 km away. For my US readers, this is like saying a fire in Dallas has affected the sunlight in New York City.
Iāve had a big life change, and I think thatās why Instagramming has suddenly left my routine. I miss some of the contact, and some dear friends message me there, knowing that doing so on Facebook makes no sense. I did give the impression to one person, and I publicly apologize to her, that I stopped Instagramming because the company is owned by Facebook, but the fact is Iāve done my screen time for the day and Iāve no desire to check my phone and play with a buggy app. Looks like seven years (late 2012 to the beginning of 2020) was what it took for me to be Instagrammed out, shorter than Facebook, where it took 10 (2007 to 2017).
Go a bit further to this link, and there they are, nearly 500 preferences linked to me, compiled even though I had opted out of personalizationāmaking Twitter just as bad as Facebook.
What do I do? Exactly what I did on Facebook: I deselected each and every single one. Twitter doesnāt need this to market to me. Frankly itās enough that it has my IP address and it can geo-target. It doesnāt need any more precision than that. I get to the bottom of the page, having done them all:
And just like Facebook, within hours it has reselected over 400 of them, repopulating preferences and overriding what the user wants.
In fact, some were being reselected within seconds, but I put that down to the fact I was using a cellphone. As of this writing, the second deselections have been done on the desktop.
This is simply not right, but we have been seeing signs in the latter part of the 2010s that Twitter is as bad as Facebook, with its love of bots, bigotry and its mass censorship. Now itās as devoted to selling its users as the rest of Big Tech. The net result is Iāll begin limiting my time on Twitter because its privacy intrusion has gone too far. It cannot be trusted. It will probably become a work tool as Facebook has, where I do little of my own stuff, and only serve my clients; or I simply have automated content.
I suppose you can always say, āWell, at least itās not as bad as ā¦ā and on that note, I checked in to Facebook to see if I could post a question on why advertising preferences were not editable.
Eventually I found four others had managed, after wading through Facebookās many layers of pages before getting to one where you could pose a question, to ask the same.
Except none of them are clickable to a question-and-answer page. They all take you to a Facebook Business advertising queriesā page.
Therefore, I asked the question even though it had already been asked. I doubt Iāll hear back, as I noticed that on the same visit, Facebook had censored two of my earlier responses.
Why? They reveal that Facebookās platform is buggy, that I was unable to do some things on pages that it claimed I was able to do.
All I can say is that this is petty. Facebook: for the last 15 years your platform has been buggy. Everyone knows this. Covering up a couple of comments made in your own forums, comments that are truthful and actually helpful to others who encounter the same thing, doesnāt make your platform any less buggy. But this is the Zuckerberg way: all-too-precious, wimpy against criticism, with a self-belief that not publishing something will make it go away. I mean, itās worked against equally wimpy governments. It is a page out of the Google playbook, too: its forums are full of cultist believers who ask, āHow dare you question our god?ā when you post about bugs. However, it alienates users.
Itās probably why the old Getsatisfaction Facebook forum was closed down, because it revealed so many bugs about the system.
Iām hoping the 2020s will see some sort of mass rejection of these Big Tech social-tracking platforms, but I thought that would happen years ago. I was wrong. There are still good people on them but there are also good people on Mastodon and elsewhere.
PS.: Here we are, four hours later, after I unticked all the preferences. At least 300 of them have been reselected by Twitter. So it is like Facebook. Once again, we have to say to a US Big Tech firm: stop lying. Your claims about your settings are bogus.
P.PS.: Day two, still fighting Twitter, which reticked a lot (but not all) of the preferences. Still in the hundreds.
