Posts Tagged: "Europe"

In 2018, after years of planning, the General Data Protection Regulation (GDPR) was introduced by authorities across Europe. It aimed to modernize the laws that protect individuals’ private information; laws which hadn’t been updated for nearly two decades. The GDPR was designed to give formidable power to data protection authorities. The threat of fines of up to €20 million or up to 4% of an organization’s global annual turnover (depending on which is greater) had been established. Two years on, although there have been over 160,000 data breaches reported, only a small number of companies have been issued with a punishment…. Enforcement has indeed varied widely across countries, and last year we caught a glimpse of what the data breach landscape may look like in terms of fines in the UK. The Information Commissioner’s Office (ICO) has issued intentions to fine British Airways £183 million, in addition to a potential £3 billion compensation pay-out, after the personal data of around 500,000 customers was exposed from their website and app. Marriott have also been issued with an intention to fine in the sum of £99m. In comparison, almost a third of countries reportedly have yet to issue a single fine.

The last few years have seen unprecedented changes in the legal landscape concerning data protection and privacy. The European Union General Data Protection Regulation (GDPR) became enforceable in May 2018. In July 2018, the California Consumer Privacy Act (CCPA) was enacted, and it became effective January 1, 2020. In response to the GDPR and the CCPA, many businesses are updating their privacy policies to comply with these laws. While crafting these updates, drafters should be cognizant of the effect such policies could have not only in the short term, but also down the road. For example, in the bankruptcy context, the content of a company’s privacy policy is important. If a privacy policy does not inform customers that their data may be sold in a bankruptcy proceeding, courts are likely to impose restrictions on the sale of that data. These restrictions can significantly decrease the value of such assets. Because of this reality, drafters should keep a few considerations in mind as they update privacy policies to comply with new laws and maximize the value of data assets.

As the year winds down, IPWatchdog is running a series of articles on the top stories of 2019 and what’s ahead for the year to come. In Europe, all eyes will be on Brexit and its effect on IP rights, the Unwired Planet case, and the Skykick trademark decision, among others. Overall, IP law developments across the EU have offered decidedly more clarity for IP owners than in the United States this year. Here are the highlights:  

The Grand Chamber of the Court of Justice of the European Union (CJEU) has ruled that supply to the public by downloading, for permanent use, of an e-book is covered by the concept of “communication to the public” rather than “distribution to the public.” Under Article 3(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (Infosoc Directive), the communication to the public right is not exhausted by any communication to the public or making available to the public. The dispute in this case was between two associations representing copyright holders on one hand and Tom Kabinet, which operates a website with a virtual market of second-hand e-books offered via a reading club, on the other hand. The associations argued that Tom Kabinet was making an unauthorized communication to the public.

This year has included many twists and turns for IP stakeholders, particularly on the patent side. Most recently, the Federal Circuit’s decision in Arthrex has called into question the constitutionality of Patent Trial and Appeal Board decisions, and perhaps the Board itself. Elsewhere, Congress has been—unsuccessfully—attempting to step in and clarify U.S. patent law since early in the year, while the courts have continued to muddy the waters of patent eligibility law. The Federal Trade Commission’s case against Qualcomm, and Judge Lucy Koh’s decision in the case, have further called into question the United States’ ability to compete on the innovation front going forward. And yet, there have been some wins in other areas this year, including at the U.S. Patent and Trademark Office (USPTO), and there remain many reasons to be hopeful about the year ahead. IPWatchdog asked some IP experts to share what they have to be thankful for on the IP front this Thanksgiving, despite all the uncertainty. Hopefully, as those of you who celebrate the holiday enjoy your Thanksgiving dinners, these sentiments will inspire you to be thankful too.

Founded in 2006 by the governments of France, the United Kingdom and several others, and financed by a combination of a tax on airline tickets and government grants, Unitaid is one of the lesser known players in the crowded world of global health. Unitaid’s most distinctive contribution is its Medicines Patent Pool (MPP), now approaching its tenth year of operation. It is a “one-stop shop” for patented medicines owned by different companies and available for voluntary licensing in low- and middle-income countries, so generic versions can be manufactured cheaply. At the moment, it focuses on medicines for HIV, malaria, tuberculosis and Hepatitis C. Respecting existing intellectual property rights (IPRs) for new medicines is key to the success of the MPP, as it allows rights-holders of innovative medicines to widen access to their medicines in lower-income markets without compromising their markets in wealthier parts of the world from where they derive the majority of their profits. This in turn ensures the funds for the research and development that drives medical progress. Despite demonstrating how the market-based system of IPRs can be used to promote access to medicines, Unitaid has also started to pursue energetically what it describes as a “complementary” strategy of encouraging middle-income countries to undermine and attack IP rights.

On September 24, the Court of Justice of the European Union (CJEU) delivered its decision in case C-507/17, Google v. CNIL regarding the territorial scope of the “right to be forgotten”. Google Inc. had filed an appeal with the French Council of State (FCS), the Highest Administrative Court in France, requesting the annulment of a decision by the French Data Protection Authority (CNIL), which imposed a penalty of EUR 100,000 (approximately USD 110,300) on Google. The case arises from a request to Google by a natural person for deletion of certain links from the list of results displayed following a search of his name (“request for de-referencing”). In response, Google refused to remove certain content from all versions of the domain name of its search engine (i.e., worldwide), leading to the penalty imposed by the CNIL. The FCS then made a request for preliminary reference to the CJEU for guidance on the interpretation of the “right of de-referencing”, popularly known as the “right to be forgotten”.

During our previous interview Ms.Romano-Götsch mentioned that the EPO would be soon releasing a study on self driving vehicles. I expressed interest in speaking with her again once that study was published, and she agreed. Our conversation discussing this EPO study follows. In this wide-ranging conversation we discuss how traditional auto companies and big tech companies are both competing in the self driving space, and how the EPO is seeing an increase in applications from SMEs as well. We also discuss how the political climate in Europe surrounding a push for greater fuel efficiency and environmental concerns are a driving force behind autonomous driving initiatives across Europe.

From 2011 to 2017, patent applications at the EPO for automated driving increased by 330%, compared to 16% across all technologies in the same period, according to the study, titled “Patents and self-driving vehicles”. And in the past ten years, the EPO received some 18 000 patent applications related to self-driving vehicles, with nearly 4,000 in 2017 alone. The study also shows that half of the top 25 companies active in this field at the EPO, including the top four applicants, are not traditional automotive/transport companies, but information, communication and technology (ICT) firms.

When it comes to the IP rights of your competitors, what you don’t know can hurt you. As your company brings new products to the marketplace, you should consider taking steps to ensure that doing so does not infringe on the patent rights of your competitors or other companies. Understanding what is in the patent portfolios of your competitors and the IP landscape in general is key to avoiding surprises and reducing risk when commercializing products. Competitor landscape reviews may also provide valuable insight into your own patenting strategy. To this end, many companies perform so-called “freedom to operate” (FTO) studies with the goal of identifying any potential IP barriers to market entry and the associated risks of future litigation.

The WHOIS database provides technical information about the date of creation and expiration of a domain, as well as contact information for the registrant of a website, including name, physical address, email address, and phone numbers. GoDaddy and WHOIS.com appear to have selectively redacted the information only for registrants providing an EU contact address. However, given the difficultly of determining which domain owners are EU citizens, many registrars, such as Tucows, removed data for all domains regardless of where the registrant is located. In light of this WHOIS blackout, the GDPR has effectively made it easier for counterfeiters and infringers to evade detection.

This time last year, the combination of the Commission’s September 2017 Communication and the proposed Article 13 of the draft Copyright Directive led some to conclude that Europe was indeed moving away from protecting internet intermediaries. Although the Communication has been backed up by the March 2018 Commission Recommendation (with its focus on terrorist content), whether Article 13 is ever enacted and in what form is still to be decided. Meanwhile, we await answers from the CJEU regarding the permissible subject-matter breadth and territorial width of injunctions made against intermediaries, and will keep an eye out for legislative action from the Commission following from its Recommendation earlier this year.

The issue faced by the EU High Court was whether shape and color of Louboutin’s mark could be separated under the circumstances; i.e., whether color applied to the sole of a high-heeled shoe is essentially a “shape” mark within the meaning of the EU trademark law. The EU High Court found in favor of Louboutin, pointing out that Louboutin did not seek to protect a particular shape, but the application of a color to a specific part of a high heeled shoe. 

With the June 9 deadline for national implementation fast approaching, we surveyed colleagues in our other European offices to check the state of play in their jurisdiction. The picture which emerged was mixed. Much progress has been made towards national implementation of the Directive in the UK, Italy, France, The Netherlands, Denmark, Sweden, and Hungary. Implementation in these jurisdictions is expected on or around the June 9 deadline. Work is also underway in Poland and Finland, but it’s possible that implementation could slip a few months past the deadline. Slightly further behind are Spain, Belgium, and the Czech Republic. Germany is currently lagging behind as the recent political deadlock surrounding the formation of the new government has delayed the legislative agenda, although a draft bill has been promised for the first half of 2018.

The European Union suffers from an investment deficit relative to other industrialized nations. A recent report by the European Commission emphasizes this impact, “the EU needs to put in place better incentives and conditions for businesses to innovate” in important areas such as market regulations, intellectual property rights protection, barriers to entrepreneurship, and ease of doing business. Given this, encouraging investment is essential to future growth. Weakening the IP incentives embedded in SPCs would be a step in the wrong direction.