Nikita Munjal is a 3L JD/MBA Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

Using the Internet inevitably requires consenting to have your personal information used, collected, and disclosed by the websites you visit. A common reason for individuals, corporations, and non-profit organizations to collect your personal information is to influence your behaviour online, from your to your . One of the most effective ways to influence consumer behaviour online is through targeted advertising.

Value for Advertisers

Access to personal information has become necessary for advertisers to convert potential leads into customers. Think back to 2012, for example, when a suggested that a statistician working at Target predicted a teenage girl’s pregnancy based on her shopping habits. What did Target do with this information? It mailed her coupons for baby clothes and cribs.

that the value of your personal information to advertisers depends on various factors. Factors influencing value include your gender, race, and sensitivity of the information (that is, cost more than ). If, for example, the target audience for a new sneaker launch is young males of middle eastern origin, the spent to acquire your personal information is a minor investment to incur to influence you to purchase $180 sneakers.

Value for Users

Traditionally, users have valued the ability to share their personal information while using online services, like search engines or social media platforms, citing their .

However, increasingly, . This trend has mobilized startups in Silicon Valley to appeal to privacy-conscious users by providing them an incentive to share their personal information. Known as paid-to-surf models, companies in this space require their users to install browser extensions to track their browsing.

What monetary value do some privacy-conscious users demand to share their personal information? $20 a month for users of . Others are . While these paid-to-surf models have the potential to be disruptive, they are not yet a viable alternative, as users must surf a certain amount before they can cash out. ��

Value Going Forward

The tech industry has built empires based on collecting, using, and selling its users’ personal information to third-party advertisers. Surprisingly, some factions of the tech industry are modifying their business models to limit the tracking of personal information. Apple, for example, introduced a new iOS in 2021, s. Similarly, on its Chrome browser is estimated to impact millions of advertisers.

Apple and Google argue that these changes are necessary to respond to increasing and customer sensitivity to sharing personal information (the IPilogue has documented increased regulation in the and ). However, , including , lament that the changes are veiled anti-competitive practices.

Interestingly, increasing barriers to the online advertising ecosystem may benefit users. If access to personal information becomes impeded, interested parties may need to incentivize users to share their personal information, increasing users’ bargaining power. Although it is unclear what effect Apple and Google’s changes will have on the ecosystem, I am hopeful that users can leverage more control over their personal information for fair compensation by technology companies or advertisers for their valuable commodity.

The post How Much is Your Personal Information Worth? And What Will It Be Worth in the Future? appeared first on IPOsgoode.

Photo by Ann H ()

Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School

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On February 11, 2022, a class action lawsuit against for double ticketing settled for $6 million dollars. People who used Airbnb for the first time since October 2015 may be eligible for up to $45 in credit. Vancouver resident filed the class action in 2017 on the basis that Airbnb appeared to charge Lin $122 a night for what he booked as a $108 night on the app. The act of charging a consumer the higher of two or more prices is known as and it is a criminal offence in Canada under Section 54 of the Competition Act. This class action signified that parties can be found guilty of double ticketing even in online spaces.

Double ticketing in Canadian law is described as charging a consumer the of two or more prices when it is expressed in the following ways: on a product (its wrapper or container), on anything attached to the product including anything on which the product is mounted for display or sale, on an in-store or other point-of-purchase display or advertisement. Online spaces, such as applications, are not explicitly included in that list as this section was first enacted in . The Section intends to prevent consumers from being by the prices they are charged. Interestingly, prices that are not in-store or at the point of purchase, such as newspaper ads, . This exclusion could give way to online sellers having different prices listed online, as these online prices appear to be neither in-store nor definitively at a point-of-purchase. The Airbnb class action helps clarify how courts may contemplate a Section 54 offence for online retailers.

In its initial arguments, claimed that double ticketing did not apply because the two prices for a single accommodation are the price of two different products. The first price reflects the actual accommodation offered by hosts to guests and the higher price is the listing service. found this pleading to be a mischaracterization of Airbnb’s own products and that it was not plain and obvious that these are two prices for two different products. Airbnb was found guilty of double ticketing, then the decision. On appeal in federal court, the parties reached a of $6 million dollars and Airbnb avoided admitting liability. Person(s) guilty of a Section 54 can face a maximum fine of up to $10,000 and/or a year’s imprisonment.

Justice Gascon also indicated that the class action’s Section 54 claim is and stretches Section 54’s potential interpretation. However, this class action is not the first Section 54 class action against online sales. On it was reported that a class action against WestJet for double ticketing was approved. In that action, the plaintiff argued that WestJet claimed in its published tariff that the would be free yet proceeded to charge passengers anyways. Businesses can take advantage of online sales by posting one price, then adding non-optional fees in the final checkout. The current provision, Section 54 of the Competition Act has not developed to include online price differences in the list of double ticketing offences. These emerging class actions demonstrate how case law can help adapt statutes to changing sale environments and serve as an expensive warning to retailers that hide fees to better market products online.

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Traditional Board Games Moving Online

In this extended period where many of us are housebound, board games are a nice reprieve from social isolation. We are able to play games with our friends over drinks and snacks, from the convenience of our own homes.

One of my favourite board games before social isolation began was , created by (CGE). It is a popular game that is distributed internationally in a variety of languages, and it has won a number of awards, including the Mensa Select Award.

So, as you can imagine, when social isolation was recommended, I looked for an online version of Codenames that would still allow me to have fun with friends and family. My initial search engine results for “codenames online” showed the link to the unfortunately named , as well as , and . All of these appear to be knock-off online versions of the official version, most of which prominently displayed the word “codenames” on their sites.

CGE was slow to adapt to the current need for online games, so they only recently launched an of the game. If they had popped up in my search engine results the first time I went looking, I definitely would have chosen to use their platform.

Potential Harm

Loss of Distinctiveness

of the Trademarks Act says that the registration of a trademark is invalid if it is not distinctive at the time that legal proceedings take place.

Trademarks can lose distinctiveness if they are not policed. If a trademark is associated with more than one product in consumers’ minds, or worse, if a trademark becomes the generic name for a given type of board or card game, then the original trademark owner risks having the registration declared invalid.

The lack of distinctiveness becomes a liability if a third party wants to clear the register to make way for their new, similar trademark. It can also become a problem if the original trademark owner decides to assert their rights, because the mark’s lack of distinctiveness makes it vulnerable to a declaration of invalidity via a counterclaim.

Trademark owners should actively police their trademarks during this time in order to avoid loss of distinctiveness. Owners should be aware that people are looking for things to do online during this period of self-isolation, and that means that opportunists are more likely to create knock-off versions of popular games.

Depreciation of Goodwill

A lot of popular board and card games, like , , or have registered trademarks in Canada. However, Codenames does not.

Registered or not, trademark owners should be concerned and potentially take action if other actors are depreciating the ��goodwill associated with the trademark. Section 22 of the Trademarks Act states that “No person shall use a trademark registered by another person in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto.”

Copyright Infringement

If there are knock-off games that appear to copy a well-known game’s artwork or style contrary to of the Copyright Act, a game owner may consider enforcing its copyright.

An Ounce of Prevention...

In order to pre-empt knock-offs, board game companies should act quickly to get their games online so that people will use their official site, rather than looking for a close alternative. This may mean licensing a registered trademark to an online game platform that can get the game up and running quickly, or working within the company to share the game online.

While companies may have to offer these online games for free in the short-term, a company’s IP is an important asset to protect in the long term.

Written by Rachel Marcus, IPilogue Contributing Editor. Rachel is going into her third year at Osgoode Hall Law School, and she is also an IP Innovation Clinic Fellow.

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The suspension of US intellectual property rights stems from a dispute between Antigua and Barbuda and the United States concerning online gambling sites. In 1994, Antigua and Barbuda had passed the ��allowing licenses to be granted to��organizations applying to��open online��casinos. The industry became quite lucrative��and the online gambling industry became the in Antigua reporting peak revenues of ��(although other sources a much lower value).

The trouble started in the early 2000s when the United States Department of Justice began on internet gambling sites based in foreign jurisdictions. Several��pieces of federal legislation, including the , the and the , prohibit (or were proposed to prohibit at the time) financing, managing, supervising, directing, or owning a gambling business. This had a on��Antigua and Barbuda's online gambling industry.��The profitable sector, once accounting for in 2001, shrunk to less than 7% of global online gambling market��in 2007 with revenues of less than one billion.

Antigua and Barbuda the United States' prohibition on cross-border online gambling services in 2003, alleging these constraints were against the��United States'��obligations under the (GATS). In November 2004, the panel established by the Dispute Settlement Body (DSB) determined that the United States failed to "accord services and service suppliers of any other Member treatment no less favorable than that provide for under the terms, limitations and conditions specified in the US Schedule" contrary to Articles XVI:1 and��XVI:2 of the GATS. The US appealed the decision but the Appellate Body .

In May 2005, the United States said it intended to implement the DSB's recommendations��concerning changing the laws��and it was given 11 months and 2 weeks to do so. However, they never really seemed to get around to it as in June 2006, Antigua and Barbuda requested a panel be established under Article 21.5 of the (DSU). The DSU applies when there is a "disagreement as to the existence or��consistency with a covered agreement of measures taken to comply with the recommendations and rulings".

In March 2007, the panel confirmed that the United States had failed to properly address the rulings of the DSB. Article 22.2 of the DSU provides��that in��situations where a member "fails to bring the measure found to be inconsistent with a covered agreement into compliance" within a reasonable period of time the innocent member may "request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements." In this case the agreements include both those under the GATS and intellectual property rights covered under the agreement on (TRIPS). In December 2007, the Arbitrator assessed Antigua's annual losses due to US��restrictions��on online gambling websites to be US$21 million. On January 28, 2013, the DSB authorized the suspension of concessions and obligations Antigua owed��to the United States in respect to their intellectual property rights.

While Antigua and Barbuda are not the only country to demand compensation for the United States' refusal to lift restrictions on Internet gambling (for example, a was reached with the EU), they are the only��country to pursue the somewhat uncommon remedy of a suspension of intellectual property rights.��Perhaps they are insisting on this remedy in the hopes of��negotiating a better deal.��The US$21 million annually��awarded by the DSB��is much less than the billions the online gambling industry was claimed to be��worth. In this sense it may not seem as though the punishment is sufficient for the US's transgression. However, (suspension of concessions in a sector of trade different than the sector in which the trade injury was suffered) is proposed to offer members with less economic power a meaningful mode of redress against more-developed WTO members. The threat of the suspension of IP rights could result in rights-holders pushing the government to settle the matter in an alternate manner. At this point it is not exactly clear what US intellectual property might be sold by Antigua and Barbuda or if there will be any rules concerning bundling and minimum prices. Theoretically, this could pose major problems to US IP rights-holders as their intellectual property could be sold for a mere pittance. While government authorized piracy may��be anathema to some, it is certainly a valuable bargaining chip for future negotiations.��With the government in the final stages of developing a platform to monetize the suspension of IP rights,��it looks likes intellectual property rights are poised to take the plunge.

Corey McClary is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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