From Vegas To Legal

Your update on intellectual property, information technology and regulatory matters

Men infringing copyright at work

Posted by Emil A. Georgiev on 8 July, 2010

Do you come from a land down under? Where music labels are keen to plunder?

I guess my readers will excuse this little joke with Men At Work’s “Down Under” lyrics, but it fits quite good in the context of this posting. I believe it is needless to introduce “Down Under” – you hardly cannot know the unofficial anthem of Australia! Despite its fame, since yesterday it is official – Men At Work’s song has been found to infringe the copyright in “Kookaburra”, a camp fire song written by Marion Sinclair in 1934 and currently owned by Larrikin Music Publishing Ltd Pty. “Down Under” was written and composed in 1978 by Colin Hay and Ronald Strykert, members of Men at Work, and was first published in about 1979. In 1981 the song was re-recorded for Men At Work’s “Business as Usual” album.

In 2007 Larrikin became aware that two bars of “Kookaburra” were reproduced once in the flute riff contained in the 1979 sound recording of “Down Under” and three times in the one of 1981. Alleging that “Down Under” infringed their copyright in “Kookaburra”, Larrikin started proceedings against Colin Hay and Ronald Strykert  as well as against EMI Songs Australia and EMI Music Publishing Australia, being the owner and licensee of copyright in “Down Under”. Larrikin further demanded a 60% share of the earnings “Down Under” has made since 1982.

On trial, Justice Jacobson accepted that the songs were objectively similar. Jacobson J based this finding on the cases of, inter alia, Francis Day & Hunter vs Bron and Austin vs Columbia Gramophone Co Ltd. Accordingly, objective similarity of musical works was not to be determined by a note for note comparison but by the eye as well as by the ear. Jacobson J further found that the portion reproduced in “Down Under” constituted a substantial taking from “Kookaburra”. Justice Jacobson achieved this finding referring to the judgment in Ice TV Pty Ltd v Nine Network Australia Pty Ltd, pursuant to which the determination of “substantial part” should be qualitative rather than quantitative.

Curiously, Larrikin did not claim damages for past performance on the ground of copyright infringement, but on passing off that in Australia is legislated in the  Trade Practices Act of 1974 and the Fair Trading Act 1989. In these proceedings, however, the court did not assess the quantum of damages or royalties to be paid to Larrikin.

In its very recently delivered ruling, Jacobson J referred to Larrikin’s 60% demand on “Down Under”‘s earnings as “excessive, overreaching and unrealistic”. Instead, his Honour ordered EMI to pay a percentage interest amounting to 5%.

Why is this case of any relevance at all?

Access to copyright works has never been so convenient as in the information society of today. Albeit inspiring for creators of later and ostensibly independent works, such access may turn to a risk for such creators. I am convinced that this Kookaburra decision shall be a far-reaching one and shall influence the judiciary in other common law jurisdictions such as England and Wales, New Zealand and Canada. Some aspects might be persuasive also for US Justices, although I guess that this very case would be decided by an US court rather on the grounds of fair use as “Down Under” is transformative to “Kookaburra”. My message to creators would be then: be cautious, if you are keen not to infringe copyright law at your work.

Posted in copyright | Tagged: , , , , , , , , | 1 Comment »

Do not misappropriate the law, guys.

Posted by Emil A. Georgiev on 25 June, 2010

It has been a long time since I wrote my last posting related to Bulgaria. During the last days, however, a police campaign or even a raid directed against the online content provider www. chitanka.info (chitanka meaning an alphabet book in Bulgarian) achieved a huge medial attention and, particularly, the one of the Bulgarian blogosphere. While the police claimed a success over a group engaged in “Internet piracy”, journalists and blog writers saw an attack against the knowledge society in Bulgaria.

What was the problem in the first place?

Chitanka.info had digitised numerous printed books and made them available on the Internet to the world at large. In legal terms chitanka.info had copied and adapted (mainly literary) works and subsequently communicated those to the public. On the grounds that the foregoing represented acts restricted by copyright law, publishers and right owners’ associations argued that chitanka.info had infringed the copyright in the works, because they acted without the consent of the respective copyright owners. Apparently, these very right owners instructed the police to raid chitanka’s premises and to seize the equipment hosting the arguably infringing materials.

The operators of chitanka.info raised several defences, some of which were legal by their nature and some that were not. Regarding the latter they argued that their offering addressed school kids and thus served to satisfy primary educational needs. They further argued that some of the books they offered to download represented sold-out editions, not re-published since then and thus no longer available in bookstores. Eventually they stressed on the misery reigning in public libraries and on the fact that today’s consumers demanded an online access to books, but publishers yet failed to (legally) satisfy this demand. Chitanka.info’s legal defences grounded on Art 24 (9) of the Bulgarian Act on Copyright and related Rights (Copyright Act) and on the fact that their offering was merely altruistic as it did not depend on a payment.

I would like to focus on chitanka.info’s legal defences in this posting. Art 24 deals with the free (fair) use of works for which users neither need tot obtain the copyright owners’ consent nor owe they any payments in connection with their use. Subsection 9 of this Article regards – as the Bulgarian and hence legally binding version of the act calls them -  “publicly accessible” libraries. Please observe that the English translation of the act accessible via the link above refers to “public libraries”. This ostensibly unimportant distinction, displayed by the translation and of later relevance, might prove decisive for chitanka.info’s case.

To the best of my knowledge neither the Copyright Act nor other legislation in force in Bulgaria defines the term of a “publicly accessible” library. By contrast, the Bulgarian Public Libraries Act delivers a definition of the term “public library”. Accordingly, a library needs to comply with the requirements set out in Art 8 of said act in order to be a “public library”. There is no doubt that chitanka.info does not comply with those requirements. The Public Libraries Act was, however, delivered in 2009, whereas Art 24 (9) of the Copyright Act was last amended in 2005.

The issue suggests a few logical questions:

  • What did the lawmakers have before eyes when they drafted the Public Libraries Act?
  • Did they consider the “publicly accessible” libraries as mentioned in the Copyright Act, and
  • Are public libraries to be equated with publicly accessible libraries at all?

Depending on the answer of these questions, there might be following solution approaches:

  1. The terms public library and publicly accessible library are identical. Since chitanka.info does not qualify as a public library it likewise fails to qualify for the limitation under Art 24 (9) granted to publicly accessible libraries.
  2. The terms are not identical and the lawmakers did not intend to curtail the limitation under Art 24 (9) to only public libraries. Moreover, the limitation should apply to any library that is publicly accessible. Chitanka.info would then qualify for the safe harbour provided by Art 24 (9). Public libraries would qualify as well as they are by their definition “publicly accessible”.

It will be up to a court of competent jurisdiction to decide somehow or other. I personally would support the second solution approach as I am of the opinion that copyright law is misappropriated when used to prevent the spreading of information, particularly for educational purposes. My friendly piece of advice to the police would then read: do not misappropriate the law, guys.

Posted in copyright | Tagged: , , , , , , , , , , , , | 19 Comments »

Will Ireland eventually overthrow data retention?

Posted by Emil A. Georgiev on 26 May, 2010

There has not been much discussion in the aftermath of the German Constitutional Court’s ruling on data retention and the matter somehow started to collect legal dust. The recent Irish involvement, however, could cause the necessary aeration and preserve the issue from getting buried in oblivion.

Digital Rights Ireland, a non-governmental organization formed as a limited liability company under the Irish Companies Act, brought proceedings before the Irish High Court against the Minister for Communication, Marine and Natural Resource, the Minister for Justice, Equality and Law Reform, the Commissioner of An Garda Siochana, Ireland and the Attorney General because of latter authorities’ breaches against rights provided for by Irish statutes and Constitution as well as by European legislation. Claimant’s proceedings were triggered by Minister for Public Enterprise’s direction, issued in 2002, to the telecommunications providers in Ireland to retain data generated by customers of the telecommunications providers, purportedly in compliance with Section 110 (1) of the Postal and Telecommunications Services Act 1983. This direction was addressed by the Data Protection Commissioner who then threatened said Minister with the issuance of judicial review proceedings to challenge the validity of any and all such directions.

The response of the Irish Government was to pass the Criminal Justice (Terrorist Offences) Act 2005, and specifically the incorporation therein of the provisions of Part 7 thereof. Under that part of the Act, the Garda Commissioner may request a service provider to retain, for a period of 3 years, traffic data or location data or both.

This is also what claimant is combatting. They have asked the High Court to refer the matter to the European Court of Justice (ECJ). The questions the ECJ needs to deal with all relate to the validity of Directive 24/2006, in particular with rights under the EU and EC Treaties, the Charter of Fundamental Rights (CFR) and the European Convention on Human Rights (ECHR). The High Court, in its ruling, granted this motion of claimant.

It is somewhat surprising that another “Irish issue” will land before the ECJ in less than a year following ECJ’s ruling agaisnt Ireland in the Case C·301/06. In the latter, the ECJ found that Art 95 of the EC Treaty represented a sound fundament for the enactment of the Directive 24/2006 since it was apparent that differences between national rules adopted for the retention of data were liable to have a foreseeable direct impact on the functioning of the internal market which would become more serious over time.

However, following the debates in Bulgaria, Romania and Germany it was high time to have the ECJ rule on data retention’s – this time hopefully – not only procedural, but also material aspects. In a somewhat best case for the preservation of our all’s digital rights the ECJ might find against the Directive.

The hope, as is well-known, springs eternal – so let us hope the best.

Posted in privacy | Tagged: , , , , , | 1 Comment »

Consumers need not pay for delivery, when withdrawing from a distance contract

Posted by Emil A. Georgiev on 15 April, 2010

Have you been dispirited to buy things online due to uncertainty as to how far is the reach of your consumer rights? Then if you have, I may hereby present a ruling of the Court of Justice of the European Union (ECJ) that provides for more legal clarity and encourages consumers to rely on their rights guaranteed by the Directive 97/7/EC on the protection of consumers in respect of distance contracts.

In particular, the ECJ ruled that suppliers must not seek to recover delivery cost from consumers deciding to withdraw from a distance contract. Funny enough, but the expense underlying the instant case amounted to only EUR 4,95. Yes, you are reading it correct: EUR 4,95. I know, the question as to who on earth would bother the ECJ for that laughable sum would be fully appropriate, however to the extent that, German meticulosity was not concerned. I believe, we should thank the Germans for their soft spot for accuracy and morality thereby resulting in consumer protection in particular and in legal certainty in general.

Having said the above, one should, however, not forget the somewhat special German scheme to protect consumer rights. Germany maintains so-called “Verbraucherzentrallen” or associations for consumer protection which are in charge to observe and enforce consumer rights and interests. In the instant case the association for consumer protection in the province of Nord Rhine – Westphalia succeded in obtaining an injunction against an online supplier and will eventually win the case. As such associations are publicly funded, they do not necessarily fear a defeat in court proceedings. That is most probably the reason for said association’s zeal to go through all the instances for such a case.

From a legal point of view, the ECJ’s ruling is remarkable as it precludes national legislation that does not grant a buying consumer, upon their withdrawal, with an explicit right to reimburse the cost of delivering the goods previously ordered. By so ruling, the ECJ strengthens the consumer protection and bars a possible imbalance between suppliers and consumers in distance contracts.

Posted in consumer protection, e-commerce | Tagged: , , , , , | 7 Comments »

ISO Hunted Down

Posted by Emil A. Georgiev on 1 April, 2010

Stories involving file-sharing networks and copyright enforcers have become easily predictible: the latter commence court proceedings against the former and after a lengthy judicial argy-bargy (almost always) prevail thereby having the enabling network shut down. Unfortunately for all file-sharers among my readers, this post tells a story that makes no exception to the foregoing. It is dedicated to isoHunt and its legal battle against Columbia Pictures and its yesterday’s announced probable death.

The first proceeding in which isoHunt and its founder Gary Fung took the role of the defendants commenced somewhere in 2006 and has brought some legal clouds over that network. Notwithstanding, in this post I would like to more properly address the last ruling of the US District Court for the Central District of California which is capable to eventually provide the defendants with their Hemlock cup.

In the instant case claimants had moved for a summary judgment against the defendants on the grounds that defendants’ users have infringed claimants’ copyrights and defendants are therefore liable for such infringement under the theories of inducement, contributory infringement, and vicarious infringement. Not surprisingly, Judge Wilson granted claimants’ motion for a summary judgment. What makes this ruling noteworthy is Court’s profound discussion of the torrent technology concerned and its findings on defendants’ liability.

A good starting point in the discussion could be made by the fact that the ruling in question was delivered by the Honorable Stephen Wilson – the judge who presided over the original Grokster case. Whether therefore or not, but his Honour seems somewhat exerted to make as many references to the Grokster cases as only possible. Thus, in his view, defendants’ torrent sites, albeit demonstrating a unique download process, represent an evolutionary modification of traditional “peer-to-peer” sharing sites such as Napster and Grokster. They would only differentiate in that the files, awaiting to be shared, are hosted locally on the file-sharers’ computers and not on a centrally operated server. In order to accesss the files, the file-sharers would need a “library” that maintains an index of torrent files available to download. These files do not contain copyrighted materials themselves, but the data used by a torrent client to retrieve copyrighted materials through a peer-to-peer transfer. Such files have been previously uploaded by (other) users who host the copyrighted materials locally. Once a user downloads a given content file, he also becomes a source for future requests and downloads.

In its liability analysis the Court found that defendants’ inducement liability was so overwhelmingly clear, and that a discussion on the remaining two liability theories, ie secondary and vicarious liability, would be unnecessarily duplicative.

The Court stated that claimants have used IP-address data to locate defendants’ users and show that particular infringing downloads took place in the United States. Further, claimants have provided, in Court’s view, sufficient evidence that, contrary to defendants’ wholly unsupported (arg!) assertions, torrent files downloaded from defendants’ sites correspond to and automatically cause the downloading of claimants’ copyrighted materials.

In determining defendants’ inducement liability, Judge Wilson quoted one of US Supreme Court’s dicta in MGM vs Grokster, according to which “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” In citing the Supreme Court in Grokster anew, the Court stated that the classic instance of inducement was by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. By the same token, claimants, in Court’s determination, presented a variety of undisputed evidence that defendants disseminated a message “designed to stimulate others” to commit infringements. Thereafter, the Court found, defendants’ liability for inducement was no longer open to any doubt. Moreover, claimants engaged in “purposeful, culpable expression and conduct” aimed at promoting infringing uses of the torrent websites.

In a next procedural step, the defendants had raised a defence based on the Digital Millenium Copyright Act (DMCA) that favours providers of certain internet services. However, upon stating that claimants had established defendants’ knowledge of their users’ infringing activities and, as defendants (i) failed to show they were not aware of facts or circumstances relating to infringement, and as defendants (ii) failed to evidence that they had removed the infringing material once they became aware of an infringing activity, the Court dismissed the defence and denied claimants’ entitlement to statutory safe harbour under the DMCA.

In its conclusion, the Court once again quoted Grokster and ruled that defendants’ technology is nothing more than “old wine in a new bottle”, consequently the outcome in the instant case could only be the same as in Grokster.

In my personal view, the above ruling is in full compliance with the currently applicable US legislation and judicial authority. Notwithstanding, developments such as in this case show at least two things. First, there is an ever-growing demand to access copyrighted material online and the shutdown of, say, Grokster did not prevent the establishing of isoHunt and Pirate Bay and it is very likely that their shutdown shall be accompanied by new creations in the file-sharing realm. Second, the rights’ owners should more extensively and, within the boundaries of applicable law, consider opportunities that employ the new technologies and lead to, maybe less excessive, but still good earnings, instead of prosecuting its own prospective customers.

Posted in copyright | Tagged: , , , , , , , , | 2 Comments »

Google’s AdWords do not infringe trade marks!

Posted by Emil A. Georgiev on 24 March, 2010

One of my blog’s posts that has been attracting a huge user attention and hence traffic is the one relating to the case of Louis Vuitton et al vs Google. I wrote it some months ago with the purpose to cover the highly controversial opinion of Poiares Maduro, being the Advocate General assigned to this case. As many others interested in this matter, I was waiting for the final ruling to be delivered by the European Court of Justice. Well, yesterday was the day – the ruling, having the potential to prove not lesser controversial than the preceding opinion, is out and I will fulfil my promise and discuss it hereunder.

The Court had to deal with the separate proceedings that the three claimants, Louis Vuitton, Viaticum and Mr Thonet had raised against Google in France. All three claims had reached the highest French court – the Cour de Cassation. That court decided to stay the proceedings and to refer the following questions to the ECJ:

  • Must Article 5 (1) (a) and (b) of  the First Trade Mark Directive (the Directive) and Article 9 (1) (a) and (b) of the Community Trade Mark Regulation (CTMR) be interpreted as meaning that Google who makes available to advertisers keywords reproducing or imitating registered trade marks and arranges by its AdWords to create and favourably display, on the basis of those keywords, advertising links to sites offering infringing goods is using those trade marks in a manner which their proprietor is entitled to prevent?
  • In the event that the trade marks have a reputation, may the proprietor oppose such use under Article 5 (2) of the Directive and Article 9 (1) (c) of the CTMR?
  • In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under either the Directive or the CTMR, may Google be regarded as a “hosting” provider within the meaning of Article 14 of the E-Commerce Directive, so that that Google cannot incur liability until it has been notified by the trade mark proprietor of the unlawful use of the sign by the advertiser?

In answering the first question, the Court addressed whether Google (through its AdWords service) used the trade marks in the first place. The Court thereby opined that Google did not and I personally find the Court’s reasoning more than remarkable. Accordingly, not even the fact that Google operates its AdWords “in the course of trade” as it enables advertisers to select signs identical with trade marks as keywords and stores those signs and displays its clients’ ads on the basis thereof suffices to open Google’s dealing to a “use” within the terms of Article 5 of the Directive and Article 9 of the CTRM. This conclusion, the Court holds, is neither called into question by the fact that Google is paid by its clients for the use of those signs.

The Court, at least, grants a cold comfort to the trade marks proprietors by stating that Google’s clients used the signs identical with, or similar to, the proprietors’ trade marks and that, Google allowed its clients to use signs which are identical with, or similar to, trade marks, without itself having used those signs.

The logical questions that demands an answer would be respectively: is a proprietor entitled to prevent a client of Google to use signs which are identical with, or similar to, proprietor’s trade marks? The Court’s opinion thereto is rather restrictive and conveys once again bad news for trade marks proprietors: the exercise of that right must be reserved only to cases in which third party’s use of the sign affects or is liable to affect the functions of the trade mark. A proprietor, accordingly, cannot in general terms oppose the use of a sign identical with the mark if that use is not liable to cause detriment to any of the functions of that mark. With regard to the instant cases, the Court concluded that proprietors cannot prevent third parties from using keywords selected on Google’s AdWords and displayed in connection with goods or services identical with those for which that mark is registered, unless that ad enables an average internet user to ascertain that the goods or services referred to therein originate from a third party.

In answering the second question, the Court denied a “use” of Google within Article 5 (2) of the Directive  or within Article 9 (1) (c) of the CTMR. However, third parties free-riding over well known and reputable trade marks and by this gaining advantages may be considered infringing such trade marks and be very well restrained from doing so.

In answering the third question, the Court found that Google was an information society service provider and was thus entitled to benefit from the liability exemptions guaranteed by the E-Commerce Directive with respect to such providers. The Court further pointed out that the mere facts that Google’s services were subject to payment,  could not have the effect of depriving Google of the above exemptions from liability.

Overall, the Court acquitted Google, so to say, of all charges.

What does the ruling mean for the proprietors of trade marks? Well, I believe there are both, bad but also good news for those. The bad news are that the ruling weakens the proprietors’ exclusive rights in their trade marks. It literally scrapes a layer or even two from the exclusivity to use such trade marks.

The good news, however, consist in the legal certainty that this ruling provides for, as it also regards a row of questions that are of general importance for trade marks law. Put it another way – it is nothing but the eternal dilemma: is the glass half empty or just half full?

Posted in e-commerce, trade mark | Tagged: , , , , , , , , , | 10 Comments »

How to hit a misappropriating fly on the wall

Posted by Emil A. Georgiev on 20 March, 2010

Imagine you were a farmer and invested lots of time and effort to sow seeds and watched the crops grow. Now imagine another farmer who attempted to harvest your crops without having invested any time and labour therein. Would you allow such farmer to reap your crops? You most probably would not.

In a very recent case , the New York District Court for the Southern District had to deal with a question pretty much like the one above. The claimants Barclays Capital Inc, Merril Lynch, Pierce, Fenner & Smith Inc and Morgan Stanley & Co Inc accused the defendant theflyonthewall.com of copyright infringement and of hot-news misappropriation relating to claimants’ recommendations that claimants have researched for their paying clients.

In particular, the claimants accused the defendant to have undertaken a regular, systematic, and timely taking of claimants’ hot-news and to have disseminated them through unauthorised channels of electronic distribution before the claimants had an opportunity to share these recommendations with their clients.

As for the claim regarding copyright infringement,  defendant did not dispute ther arrangement therein. As for the claim relating to hot-news misappropriation, however, defendant contested its liability thereunder.

Not surprisingly, the Court found defendant liable in both instances.

This ruling, albeit delivered by a lower court, is, I believe, remarkable for Court’s dissection of the law of unfair competition and, misappropriation, in particular. The Court started with INS vs AP, went through Cheney Bros vs Doris Silk and Capitol Records vs Mercury Records and ended up with NBA vs Motorola. A very important thing in my view, is Court’s dedication to the question as to whether federal law preempted  forms of state-law misappropriation, and particularly,  misappropriation of time-sensitive “hot news”. The Court further cited a “mysterious footnote” from Feist, according to which the protection for “hot news” should not be sought under copyright law, but under an INS-type misappropriation theory.

Finally Justice Denise Cote spent some considerations on the public policy. Besides the value of claimants’ hot-news to the market, she thereby noted that such recommendations were not mere objective facts, but rather, subjective judgments based on complex and imperfect evidence and could therefore attract copyright protection. With respect to public’s interest to access financial information on reasonable terms, the Court stated that a balance need be struck between establishing rewards to stimulate socially useful efforts on the one hand, and permitting maximum access to the fruits of those efforts on the other. However, no other was the purpose of the INS-tort or the one of the traditionally accepted goal of intellectual property law – and this is – to provide an incentive for the production of socially useful information without either under- or overprotecting the efforts to gather such information.

Put it all together, the 89 pages long ruling of the New York District Court for the Southern District definitely hits the misappropriating fly on the wall. Bearing its unique dissection of the US law of unfair competition, this ruling and any acompanying comments should be communicated to as many practitioners or just people interested in the matter as only possible.

Posted in unfair competition | Tagged: , , , , , , | 8 Comments »

When a rapper equals a tazo

Posted by Emil A. Georgiev on 18 March, 2010

Do you remember when you lastly unleashed a pog from a bottle or a cup containing a light drink? Such pogs are also referred to as “rappers” or – in Spain and Mexico – as “tazos”. Never mind when, I bet you never thought of those things as of subjects of intellectual property protection. Well, that being not enough, I guess you will be surprised again to find out that such rappers/tazos caused the Court of First Instance or, the General Court of the European Union, as it was renamed in the course of the Treaty of Lisbon, to deliver its first ruling on a Community Design case ever.

The Court had to deal with the request of the claimant Grupo Promer Mon Graphic to annul OHIM‘s grant of a Community Design to the defendant PepsiCo Inc.

The defendant had obtained a Community Design for the shape of a “rapper” (see the drawings in the ruling), but faced claimant’s application for a declaration of invalidity based on claimant’s senior Community Design for a “tazo” (see the drawings in the ruling) in pursuance to which defendant’s design lacked the novelty required by Regulation No 6/2002. Claimant further alleged that they had made their design available to defendant on a private and confidential basis and that such disclosure equated with a making available to the public. Thereupon the Invalidity Division of OHIM declared the contested design invalid on the basis of Article 25 (1) (d) of above regulation. PepsiCo appealed against this decision and as a result the Third Board of Appeal of OHIM annulled the decision of the Invalidity Division and dismissed the application for a declaration of invalidity. Accordingly, the Board of Appeal concluded that the difference in the profile of the designs at issue was sufficient to conclude that they produced a different overall impression on the informed user.

Grupo Promer Mon Graphic was reluctant to put up with such an outcome and went to the General Court requesting it to annul the decision of OHIM’s Board of Appeal. In particular, the claimant raised three pleas in law, alleging, (i) defendant’s bad faith and a restrictive interpretation of Regulation No 6/2002 in the contested decision, (ii) lack of novelty of the contested design and, (iii) infringement of Article 25 (1) (d) of Regulation No 6/2002.

With respect to allegations (i) and (ii) the Court made an interesting finding: Article 25 (1) of Regulation No 6/2002 lists the grounds on which a Community design may be declared invalid exhaustively and there is no reference to the bad faith of the proprietor of a contested design. Further, a disclosure on a private and confidential basis cannot be relied upon as it did not target the public and hence did not bar the defendant from novelty.

With respect to allegation (iii) the Court first opined that Article 25 (1) (d) of Regulation No 6/2002 must be interpreted as meaning that a Community design is in conflict with a prior design when that design does not produce  a different overall impression on the informed user from that produced by the prior design. Of course, when determining the above,  the informed user needs to take into consideration the freedom of the designer in developing the Community design. In applying this interpretation to the instant case, the Court held that the two additional circles of the contested design as well as its degree of curvature – when compared to the prior design – were insufficient for the contested design to produce a different overall impression on the informed user. Accordingly, OHIM’s Board of Appeal’s decision had to be annulled.

In my view this decision is very important for two reasons: (i) it is the first ruling of a Court of the European Union that deals with a Community Design and (ii) the Court utilises its ruling to provide for a useful guidance on infringement due to similarity and hence a lack of a different impression on an informed user.

Posted in design | Tagged: , , , , , , , | 2 Comments »

Spam

Posted by Emil A. Georgiev on 9 March, 2010

I guess every Internet and e-mail user has at least once received a spam, scam or any other sort of a junk mail in their inbox. So far, the system admins at my employer have always managed to filter such undesired messages. Yesterday, however, I received an e-mail that has apparently succeeded to overcome the protection designed to restrain it.

It is not the usual marketing spam telling you how to buy cheap watches or to enlarge certain body parts, but rather a scam mocking an urgent situation. The sender pretends to be Marina Encheva and the e-mail reads as follows:

How’s everything on your end? This has had to come in a hurry and it has left me in a devastating state. I travelled to UK for a volunteer Training Program (UTP 2010), unfortunately for me I was robbed and my wallet was taken at the hotel where I lodged. The Embassy only cleared me of my travelling documents and ticketing since I came in on unofficial purposes. I only need to clear the hotel bills before I can leave but ofcourse they stopped billing me since the incident. I didn’t bring my phones here and the hotel telephone lines were disconnected during the robbery, so I have access to only emails. Please can you send me £1370 as early as possible so I can return home. As soon as I get home I would refund it immediately, I need you to get back to me so I can let you know how to send.


I’m looking forward to hearing from you.


Regards,

Marina.

So what – could the well informed Internet user ask – spam should not bother you anymore in these days – do not overestimate it! To an extent that would be fine – I would reply – but there are not only well informed users surfing the net. The average users’ age is said to amount to 28 years and as a result of Web 2.0′s advent more and more minors are entering the net. No doubt, the Internet brings many advantages that oftenly show its bright side, but spam, scam & Co show definitely its dark one.

Spam mails are in the most times misleading or even fraudulent. Hence they have the potential to cause damage to their recipients. Yes, just look at the above spam mail and consider the “professional” drafting skill applied to create it. The most users, I am sure,  would cross-read and then delete such a mail. A certain, maybe small percentage would read it carefully, and then spend some time questioning its authenticity prior to deleting it. An even smaller percentage might consider some support and probably contact the sender with an offer to help. That’s it, that’s how it works. This is what these guys are aiming at.

It is possible that the sender’s e-mail account has been hacked and misused by a wrongdoer. It is however possible that the sender is truly experiencing the described difficulties.

In any case, I will take the risk and have the sender, whoever she or he may be, wait for my reply until the cows come home.

Posted in communication, consumer protection, data protection | Tagged: , , , | 7 Comments »

German Constitutional Court abrogates provisions on data retention

Posted by Emil A. Georgiev on 3 March, 2010

Hear ye, hear ye, you all supporters of the fundamental right of privacy – 7 out of 8 German Constitutional Justices voted to declare the data retention provisions as applied in the Telecommunications Act and in the Code on Criminal Procedure null and void!

Enough of enthusiasm, however, we can go on observing the facts some of which may prove unlikely sobering when compared to yesterday’s news titles that went around the world.

You might remember that some months ago nearly 35 000 German citizens filed a mass-complaint in which they asked the Court to abrogate the provisions on data retention.

In reviewing the complaint, the Court makes an initial statement that the Federal German Constitution would not by itself forbid the retention of telecommunications traffic data for a certain time period. However, the data retention as transposed in German legislature interfered with the fundamental right of privacy in such a manner that the legal system was previously not familiar with. Hence to avoid such interference and, similar to the Romanian Constitutional Court, the German authority uses its ruling to create a recipe to be followed by the lawmakers in future. The main point made by the Court in its ruling, is the instruction towards lawmakers to observe the so called principle of proportionality (Verhältnismäßigkeitsgrundsatz).

Under reference of the above principle, the Court distills 5 requirements that need specifically be observed when drafting the prospective laws. In particular, the Court demands

- the adoption of specific provisions relating to enhanced data security and safety which the Court views mandated by the huge amounts of data to be retained;

- to safeguard that the retained data’s direct processing shall be limited to prevent only concrete danger situations arising out of  serious crimes;

- to ensure the transparency of data transfer by notifying the data subject in advance, and – where not appropriate – to subject the transfer to a respective court order and notify the data subject afterwards;

- to provide for the data subject’s legal protection amounting to, inter alia, data subject’s right to challenge the processing and transfer of their data before a court of competent jurisdiction, and – in case of breach of the above protection – to penalise such breach;

- to guarantee that indirect data processing for the purposes of IP address detection and identification, as may be the result of an enforced right of information , is not undertaken to prevent mere misdemeanours. The Court points out the importance of the latter as it states that such indirect data processing need not be subjected to a court order.

Put it all together, this long awaited ruling did hardly hit the jackpot being on stake: is the fundamental right of privacy the long expected silver bullet which is supposed to kill the vampire attempting to quench its thirst by accessing Internet users’ data? I personally read the ruling as a clear “NO”.

The Court does not really question the existence of data retention provisions. Moreover, it determines the borders of their constitutionally acceptable framing. See whether and to what extent the ruling will influence the EU member states that are still defaulting to transpone the Directive 24/2006.

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