Tuesday, July 15, 2008

Green Shift Shifts Again

Once again (earlier version here) they've changed the message where they used to keep their list of business partners, explaining why that list is no longer available. This time they make it explicit: its all the Liberal Party's fault:

The List

We are sorry that due to the Liberal Party hijacking our name, and the resulting media attention on all of the businesses and institutions on the program, we have decided to keep this list more private to ensure that no one is being harassed.

Fortunately, a copy of the list circa about 2007 can be found here, if any journalists feel like testing the claim that these people might be so put off by the Liberal environmental plan and its perceived connection to Greenshift.ca that they would refuse to do business with the latter company.

42 comments:

knb said...

Hijacking? Good grief. Anyone who still believes this woman's motives aren't political, isn't thinking.

Prairie Kid said...

Once again, Liberals miss the point.

Why are you trying to make the Green Shift company into the bad guy.

1. They had the name first.

2. They are involved with the environment.

Just because they refuse to roll over on their backs because the nations naturally governing party want to have their name doesn't make them the bad guys.

When are Liberals like yourself going to finally realize that the old Liberal strong arm tactics won't work today.

Northern PoV said...

Hey p. kid

A knowledgeable Trademark lawyer will tell you her complaint/lawsuit will go nowhere.
* tons of prior use all over the world (incl. Canada)
* a failed legal case in the US
* a political party's program and a commercial enterprise do not "compete" with each other
* "The Liberal" (905-area free news paper) seems to do fine - and no body is confused - nor would either side win a lawsuit were they silly enough to try....
On the other hand - the on-going free publicity she is getting at while distracting many from the honest debate we need to have - is priceless.

nuff said

Ti-Guy said...

When are Liberals like yourself going to finally realize that the old Liberal strong arm tactics won't work today.

Are you out of your mind? Take a look at what Herr Harper and his blueshirts have been doing over the last two years and then we'll talk about strong arm tactics.

The only strong arm we need is one to slap that silly mouth of yours shut, you pissy little moron.

Hmm. Need more coffee. ;)

RuralSandi said...

I read somewhere (can't remember where, damn it) that some of her products are made in China - is this true?

RuralSandi said...

Prairie Kid doesn't get it - she DID NOT own the TM at the time......she just used the name herself.

Jermo Sapiens said...

As far as I can tell Mrs. Wright did not look for this fight. The Liberals acted in complete disregard of her intellectual property - it was sloppy on their part, and now they expect to get a free pass because the Liberals have long equated themselves with the country's interest.

Northern Pov is only giving you half the story. That there is prior use of the expression "Green Shift" is not determinative - besides, she's suing in common law (the action of passing off), not trademark infringement, so there is no trademark that can be invalidated by showing lack of distinctiveness, which is what prior use is for. In fact, on that point, the trademark application has been recently approved, which means that at least the Commissioner of trademarks was convinced that the phrase was distinctive enough to become a canadian registered mark.

What is more relevant out of what northern pov says is that political party programs and environmental businesses dont compete against each other. However, she is not suing for tm infringement. She is suing in passing off, the elements of which are:
1. existence of goodwill
2. deception of the public due to a misrepresentation
3. actual or potential damage to the plaintiff

It's no slam dunk. But I hope for the Liberal's sake that they are not as cavalier as northern pov and dont just shrug it off - it could really go either way.

My guess: Liberals will settle, and terms of settlement will be confidential, but all of a sudden Dion's plan will be called something else.

Jermo Sapiens said...

Prairie Kid doesn't get it - she DID NOT own the TM at the time......she just used the name herself.

hey ruralsandi, you dont get it.

she's suing in passing off, which does not require a registered mark. using a name is basically how you acquire rights to it in common law.

Ti-Guy said...

Are you a lawyer, Jermo?

The issue is far less about the trademark and far more about how this appears to be a politically-motivated campaign to get the Liberals bogged down with a distraction designed to draw attention away from a proper understanding of their Green Shift policy. Check out Kady O'Malley's blogging on it at Macleans.

This is what we've come to expect from the propagandists, goons, biker-gang associates and thugs in the Conservative Party of Canada; tactics I'm sure you approve of, since it's all so "free speechy" and everything.

AM said...

Is it just possible that what's being labelled as Liberal arrogance for simply advising Ms. Wright about the name of their new plan was merely naivete - their assumption that all environmentalists are on the same team, so a head's up was all that was required.

Once the Liberals realized their mistake, the stuff was already hitting the fan thanks to a lot of help from political mischief makers.

Gayle said...

Do the LPC really look "arrogant" to anyone who is not a BT'er?

Whether or not this woman has a valid case, her use of this entire issue in order to promote her company has pretty much turned me off.

It is not that I fault her for taking advantage, I just do not like it. I suspect it is just as likely people will be turned off by her shameless self promotion as they will by the LPC's "arrogance".

Ti-Guy said...

And, pro forma, I'll renew again my call for Libloggers to start weeding out the CPC shills and propagandists who troll Liblogs to confuse the discussion with unsubstantiated assertions, sham expertise and rumour-mongering and who harass commenters with their never-ending hostility.

You can't do the same thing over at Blogging Tory blogs, since they moderate and delete comments and disappear posts like there's no tomorrow. "Conservatives" do not play by the rules of good faith dialogue and grass-roots Liberals are suffering from just being exposed to these miscreants.

Ti-Guy said...

Do the LPC really look "arrogant" to anyone who is not a BT'er?

Today's "conservative" views anyone who speaks with credibility and authority and who's fed up with their dishonesty and ignorance as "arrogant."

Apparently, we're all supposed to talk to them like their mommies and daddies do...in ways that don't damage the little dears' "self-esteem."

Jermo Sapiens said...

Are you a lawyer, Jermo?

yes, a patent lawyer, but I do trademark work as well.

The issue is far less about the trademark and far more about how this appears to be a politically-motivated campaign to get the Liberals bogged down with a distraction designed to draw attention away from a proper understanding of their Green Shift policy.

depends on your angle. i mean, for the conservatives, they will try to milk this one like the liberals will try to milk the cadman affair - that's the game of politics. but the Liberals do have a legal issue on their hand, there's no getting around that.

Jennifer Wright is perhaps a bit punch-drunk and not sure how to handle it so she is making outlandish statements in the press, which i think is ill-advised, but whatever, her issue against the Liberal party is now in front of the courts. The Liberals now have to fight this legal front, and the electoral front, which is tied in to the fundraising front.

Why would grassroots liberals donate so that Dion can pay lawyers to fix another one of his blunders?

And of course, like you pointed out Ti-Guy, this issue just creates a distraction from the message of the Green Shift. Which is why, whether the Liberals ultimately, win, lose or settle, it was a bad idea to name the plan Green Shift. Its incompetence, and if it was the conservatives, you would be having a field-day with this story.

bigcitylib said...

Actually, Jermo, I think she has milked this for all the positive publicity she is going to get. Even CTV's Duffy thought it was a publicity stunt. Now she justs gets the mounting legal bills, plus a few more searching articles like the kind Kadey O'Malley might write, probing possible connections to the Tories and the fact BTs want to help her financially.

Ti-Guy said...

yes, a patent lawyer, but I do trademark work as well.

Well, let me tell you, I take a very dim view of lawyers who argue legal issues on public forums like this pseudonymously. It seems a particularly convenient way to argue from authority while avoiding any oversight on standards of ethical conduct that lawyers are bound by.

Jermo Sapiens said...

Actually, Jermo, I think she has milked this for all the positive publicity she is going to get.

oh I agree completely on that point. but i dont think she took the name Green Shift in the hope that one day the liberals would use it as an environmental program so that she should sue them and feed off the publicity.

She has reacted to the Liberal's use of the TM and this is in fact warranted by law: letting person X use your mark without fighting back prevents you from asserting your mark against person Y. But she could have been low-key, and she definitely wasnt.

Obviously BTs are on her side. Wouldnt you be on the side of a company suing the Conservatives for any reason whatsoever?

ch said...

"for the conservatives, they will try to milk this one like the liberals will try to milk the cadman affair "

You actually see any similarity whatever to (1) a family saying a dying MP was offered a million dollars for his vote, our Prime Minister's voice on tape saying he knew of financial considerations offered to this MP in advance of the vote and (2) the LPC using the same name the UK government is using for their plan, the same name up on our governments website for funding to an environmental group in Perth, the same name at least a couple US companies go by, and, yes, the same name as a Toronto company?

These two situations bear some similarity to you? Is that your professional legal opinion or your politically-biased personal opinion?

ch said...

"letting person X use your mark without fighting back prevents you from asserting your mark against person Y"

She posted on Macleans blogs something along the line that she didn't fight other uses of this term because you have to pick your battles and said she dropped the US battle to concentrate on Canada. You are saying that is going to hurt her case?

Jermo Sapiens said...

Well, let me tell you, I take a very dim view of lawyers who argue legal issues on public forums like this pseudonymously. It seems a particularly convenient way to argue from authority while avoiding any oversight on standards of ethical conduct that lawyers are bound by.

that's ok ti-guy, as you know, i'm a conservative, and a speechy. so i dont think i can get any lower in your book, and besides i dont really care.

besides, im not offering actual legal advice here, or acting as anybody's lawyer. im just offering my 2 cents on an issue on which i happen to be knowledgeable. if i say anything of "authority", like the passing off stuff, I encourage you to double-check it if you dont believe me, and to take it with a grain of salt. also, on this issue im trying not to be overtly partisan - if you feel that's not the case let me know.

i mean, stuff like ruralsandi said, that the mark is not registered so there's no case, is so wrong it begs for a correction. i mean, does he/she really think the lawyers at Berreskin & Parr who wrote the SoC dont know that the freaking mark is not registered?

im not trying to piss you off or to prove you wrong, im just trying to have a discussion.

bigcitylib said...

Jermo,

I am assuming though that the LPC lawyers know exactly the same stuff, though. So I would imagine they advised the party that Greenshift had no case.

Jermo Sapiens said...

These two situations bear some similarity to you? Is that your professional legal opinion or your politically-biased personal opinion?

CH: no, if the Cadman affair turns out to be exactly like the Liberals want it to be, it's more like corruption. The Liberals' naming of the Green Shift plan is more like incompetence. I was making a general point that any issue that looks bad on one party is milked by its opponents. Nothing earth-shattering here.


She posted on Macleans blogs something along the line that she didn't fight other uses of this term because you have to pick your battles and said she dropped the US battle to concentrate on Canada. You are saying that is going to hurt her case?


***DISCLAIMER***
the following is NOT legal advice
****************
(because ti-guy's going to get on my case otherwise)

not sure on the factual details. but a trademark is all about informing the customer about the source of a product/service. if you see coke on pop drink, you will know that it was made by Coca-cola Inc., and you will know what to expect when you drink it. That is what trademarks are meant to protect. But if coke let a whole bunch of other people label their drinks with "coke", a customer could no longer make that association, and the value of the mark is severely diminished, because labeling a pop with "coke" no longer means anything.

So it could hurt her case, depending on the specifics of the other users of Green Shift - was it in Canada? was it in relation to similar wares/services? for how long?...

Jermo Sapiens said...

I am assuming though that the LPC lawyers know exactly the same stuff, though. So I would imagine they advised the party that Greenshift had no case.

they might have, though the liberals will never make that public.

if so, though, i would imagine it would be on the basis of the fact that the Liberal Green Shift is a political program. but they would need a major caveat to the effect that there is no real jurisprudence on a similar fact situation (i havent done a full research but im not aware of any, nor are my colleagues, at least off the top of their heads). if they gave the Liberals a full green light, sorry for the stupid pun, i would be very surprised.

bigcitylib said...

Jermo,

Thats interesting in that Green Shift is the name of the company and kind of a logo that other companies get to adopt when they've gone thorugh the Greenshift program (hired the company to do a kind of enviro audit and then adopted the measures proposed).

Jermo Sapiens said...

Thats interesting in that Green Shift is the name of the company and kind of a logo that other companies get to adopt when they've gone thorugh the Greenshift program (hired the company to do a kind of enviro audit and then adopted the measures proposed).

again, im speaking off the cuff here without full knowledge, so GRAIN OF SALT. NOT LEGAL ADVICE. FOR INTEREST ONLY.

nevertheless, you can have a trademark, and license it to 3d parties, as long as you have a control over the quality of the wares/services to which the mark relates. the issue of control is key, and a mark can be made worthless if it is found that the licensee is doing as he pleases.

so once a company hires greenshift, they can become "greenshift certified" or whatnot, im guessing anyways. that would be fine if greenshift inc. actually did exercise some kind of control over the environmental issues of the client company.

again, i reiterate, this is off the cuff, i dont know the full facts, and i havent researched it. but it is neverhteless useful for a layman trying to understand the greenshift issue. dont use this for your own legal issues. if you need advice for your own legal trademark issues, you must hire a lawyer.

Ti-Guy said...

im not trying to piss you off or to prove you wrong, im just trying to have a discussion.

I think you're trying to have the discussion on your terms. I can't speak for everyone, but the public interest on this topic, particularly for Liberals, but also for true democrats generally is the suspicion that this controversy is the result of political shenanigans.

The legal questions will be settled in court (or out of court) and it seems pointless to argue them here.

but it is neverhteless useful for a layman trying to understand the greenshift issue.

I don't think so. Trademark law isn't a science, and such information is likely more confusing and distracting than edifying.

Jermo Sapiens said...

I think you're trying to have the discussion on your terms.

what does that mean? Im posting on a liberal blog and you guys can attack me from all sides? are you suggesting i should refrain from commenting because I know about this topic?

you're saying Harper or the BTs are behind this whole thing? Whatever. They're no doubt cheering the lady on - wouldnt you? If the conservatives were sued for tm infringement, wouldnt you cheer on the plaintiffs?

As I mentioned earlier, they are required to defend their tm if it is to have any value in the future. Double-check that if you want, scream, shout, I dont care, it's a the law as it stands today.

The legal questions will be settled in court (or out of court) and it seems pointless to argue them here.

yeah sure, dont read my posts then.

Jermo Sapiens said...

I think you're trying to have the discussion on your terms.

never mind, i just got it. you're upset that the discussion veered away from the "all conservatives are evil" theme, which I know, is your favorite.

fair enough, but I'll answer BCL's questions, and correct any glaring error, like the assumption made by ruralsandi.

bigcitylib said...

Jermo,

You are allowed to ignore ti-guy, by the way.

Ti-Guy said...

and correct any glaring error,

Funny. During the whole speechy crap-fest, I didn't see you over at any of the "Conservative" blogs floating egregious disinformation that was highlighted and corrected over at Dawg's Blawg, among other venues.

"Conservatives" have a very cavalier approach to standards of accuracy, it appears. Non-"Conservatives" have to be taken to task for every assertion made, but "Conservatives" can say whatever they want and none of the "smart" ones think any kind of correction is necessary.

Jermo Sapiens said...


You are allowed to ignore ti-guy, by the way.


duly noted BCL.

Jermo Sapiens said...

re: my post of 12:18

I should point out that licensing and certification marks are different concepts, but are closely related. In this case, what BCL has described looks more like a certification mark, but again I dont have enough facts.

Certification marks are used for stuff like "fair-trade", or "organic" stuff. It could also be used, hypothetically at least, to suggest that a company has taken specific environmental measures, and is therefore "greenshift certified" - this is all a guess though.

licensing is for when a 3d party uses someone else's mark.

Ti-Guy said...

duly noted BCL.

Uh oh...he's going "mean girl" on me.

I'm not going to ignore you, that's for sure.

ch said...

"...specifics of the other users of Green Shift - was it in Canada? was it in relation to similar wares/services? for how long?..."

Ecoperth in Ontario has a program called "Green Shift" which is funded by the government of Canada. I don't know how long this program has been operating, but they seem to have already done a lot. Here is their brochure.

and here is our federal government's writeup, which starts out with:

Green Shift

REIC Perth is a small Perth-based environmental consulting company that manages and coordinates ecoPerth activities for the town of Perth.



REIC manages and put the funding in place for Green Shift, but I don't know if they coined the name or someone at Ecoperth did. One is an environmental company (like Green Shift Inc) and the other is a nonprofit.

Jermo Sapiens said...

CH: no doubt these things will come up in court as part of the Liberal's defense, if of course this thing goes to trial.

The plaintiffs will then likely come back and say that this is only local to Perth, and generally try to downplay this whole thing.

Anyways, the existence of that little program is obviously a plus for the Liberal's defense. It does not however, settle the issue.

ch said...

Yes, except I notice Green Shift Inc lists a company in Perth as an "official" Greenshifter (no relation to EcoPerth or REIC, aren't residents of Perth "confused" ;-) ) and she also says they do business in the US where the US Green Shift environmental company (completely independent) operates and says they likewise do business in Canada. I would think overlapping geographical spheres of multiple Green Shift for profit environmental companies would be more of a problem than a political proposal.

Anyway, I don't have legal expertise and don't care much one way or another, just find it surprising to learn that one business can limit outside of business the use of a term, which seems to crop up repeatedly in environmental circles around the world. She didn't have much luck in the US and there she was fighting another environmental business, and in the UK the government Green Shift program coexists with a variety of others using the same term.

Jermo Sapiens said...

Anyway, I don't have legal expertise and don't care much one way or another, just find it surprising to learn that one business can limit outside of business the use of a term, which seems to crop up repeatedly in environmental circles around the world.

the "outside of business" part is essentially what this case will be about, this issue is not yet determined. but otherwise, the main tension in trademark law is between the ability of businesses to use a name of their choosing, and to prevent others from trading on someone else's reputation. in that respect, you can not trademark a descriptive word, for example, you cannot trademark "ketchup" for ketchup. In that sense, Liberals may win because a court may find that "Green Shift" is a generic term to refer to an environmental program - we'll see what how the evidence plays out though.

ch said...

I understand the preventing "trading on someone else's reputation", but this is more subtle. Most people only discovered her a couple weeks ago.

I'm not convinced this is actually causing her business problems, but, if so, she wouldn't be the first. Look what happened to the whole income trust market in a matter of hours. And didn't broccoli sales plummet in the Bible belt after George Bush ranted 'I hate broccoli, I've always hated it'. Politicians can be a real drag and I'd love to sue some myself.

OK, guess I'm not taking this seriously enough.

Jermo Sapiens said...

yeah, well the examples you mention are not actionable - one is the executive prerogative I think, and the other, well, not liking broccoli is legal I think.

bottom line for me, is that Liberals should have paid attention to this before. now they're in a mess, and whether they win or lose, this whole thing detracts from their plan, and costs them legal fees they cant afford.

I dont think this woman was looking for a fight, and I dont believe she's a conservative, considering she's a toronto environmentalist type.

They should settle, change the name, and bury this story.

Ti-Guy said...

They should settle, change the name, and bury this story.

How arrogant.

ch said...

"well the examples you mention are not actionable"

Is that right? I know Canada prevents Canadians from suing our government for causing us harm, but I thought Americans were suing Harper for the income trust fiasco.

Okay, just googled and see that Bush bailed out his friend Yo-Steve. Ahhh, life is so unfair. Americans don't have any recourse against our government destroying their pensions (likely due to backroom deals with multinational insurance companies who made out like bandits with Harper's reversal) either.

Ti-Guy said...

Our boy Jerome sure has been obsessed:

Hello there - great post. America Alone is a fantastic book. As you may know, mark steyn is being sued in Canada for “islamophobia” at a “human rights commission” - if you’re not canadian, HRCs are the ultimate kangaroo courts where rules of evidence dont matter, but expressions of “feeling discriminated against” can get you big cash awards.

In essence, a muslim group called CIC is trying to stifle speech which points out certain inconvenient facts. To their eternal credit, another muslim group, the Muslim Canadian somehting something (led by Tarek Fatah), has forcefully condemned CIC’s actions and actually addressed Steyn’s article by responding to it - not using the courts to silence him.

If this issue interests you, feel free to join my facebook group called Defend Free Speech in Canada - The Case of Mark Steyn (shameless plug by me I know but I really feel this is important).


A Facebook group? Wow.

"Sued for islamophobia." Love that lawyerly attention to legal detail. I wonder if he and Ezra got their degrees out the same Cracker Jack box?