EasyJet won a dispute against EZY.COM in the UK

plane-841441_960_720.jpgThe UK airline company EasyGroup won an invalidation procedure against the UK registered trademark EZY.COM in class 41.

The base for this invalidation was earlier trademarks EASY.COM and EASYJET for class 41.

According to the company, there was a serious possibility for consumer confusion including because of the fact that EASYJET has a reputation in the UK and because EZY was the airline code of the company.

The UKIPO upheld the opposition confirming the possible consumer confusion due to the phonetic and visual similarities between the signs which are registered for identical and similar services.

Source: WIPR.

Advertisements

Uber won a dispute in the UK

london-722520_960_720Uber succeeded in an opposition procedure against the following UK trademark application:

GB50000000003168791.jpg

This sign was filed for the following goods and services:

In Class 9: Mobile phones and accessories; batteries; battery charges; media for storing
information, data, signals, images and/or sounds; photographic apparatus and instruments; parts and fittings for the aforesaid goods.

In Class 35: Retail services connected with the sale of mobile phones and accessories;
batteries; battery charges; media for storing information, data, signals, images and/or sounds; photographic apparatus and instruments; parts and fittings for the aforesaid goods”.

In Class 38: Advisory and consultancy services relating to communications apparatus,
equipment and accessories; rental and hire of communications apparatus, equipment, and accessories; provision of information relating to communications apparatus, equipment and accessories”.

Uber invoked a family of earlier Uber trademarks against this application, for the same classes, stating possible consumer confusion.

According to the UKIPO the goods and services of the marks were identical or complementary.

The applicant tried to claim that Uberfone poses a specific meaning in German which is to something “superb or happy”.

The Office dismissed it considering that the German language is not so popular in the UK and most of the people wouldn’t be able to get the meaning.

Taking into account the phonetic and visual similarities between the signs, the UKIPO upheld the opposition.

Source: WIPR.

How clicking on the thumb reflect on your privacy?

like-3033202_960_720.jpgThe Advocate General of the European Court has given its opinion on case C‑40/17 Fashion ID GmbH & Co.KG v Verbraucherzentrale NRW e.V., Facebook Ireland Limited, Landesbeauftragte für Datenschutz und Informationsfreiheit Nordrhein-Westfalen.

The case concerns the following thumb case:

Fashion ID (‘the Defendant’)’ is an online retailer. It sells fashion items on its website. The Defendant embedded the ‘Like’ plug-in supplied by Facebook Ireland Limited (‘Facebook Ireland’)(4) in its website. As a result the so-called Facebook ‘Like’ button appears on the Defendant’s website.

The order for reference further explains how the (non-visible) part of the plug-in functions: when a visitor lands on the Defendant’s website on which the Facebook ‘Like’ button is placed, his browser automatically sends information concerning his IP address and browser string to Facebook Ireland. The transmission of this information occurs without it being necessary to actually click on the Facebook ‘Like’ button. It also seems to follow from the order for reference that when the Defendant’s website is visited, Facebook Ireland places different kinds of cookies (session, datr and fr cookies) on the user’s device.

Verbraucherzentrale NRW (‘the Applicant’), a consumer protection association, brought judicial proceedings against the Defendant before a Landgericht (District Court, Germany). The Applicant sought an order to force the Defendant to cease integrating the social plug-in ‘Like’ from Facebook on the grounds that the Defendant allegedly did not:

–   ‘expressly and clearly explain the purpose of the collection and use of the data transmitted in that way to users of the internet page before the provider of the plug-in begins to access the user’s IP address and browser string, and/or

–  obtain the consent of users of the internet page to access to their IP address and browser string by the plug-in provider and to the data usage, in each case prior to the access occurring, and/or

–   inform users who have given their consent within the meaning of second head of claim that this can be revoked at any time with effect for the future, and/or

–   inform that “If you are a user of a social network and do not wish that social network to collect data about you via our website and link these to your user data saved on the social network, you must log out of the social network before visiting our website”.’

The Applicant claimed that Facebook Inc. or Facebook Ireland saves the IP address and browser string and links them to a specific user (member or non-member). The Defendant’s argument in response is a lack of knowledge in this respect. Facebook Ireland argues that the IP address is converted to a generic IP address and is saved only in this form and that there is no allocation of the IP address and browser string to user accounts.

The Landgericht (District Court) ruled against the Defendant on the first three pleas. The Defendant appealed. A cross-appeal was lodged by the Applicant in respect of the fourth plea.

It is within that factual and legal context that the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) decided to refer the following questions to the Court:

‘(1)  Do the rules in Articles 22, 23 and 24 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) preclude national legislation which, in addition to the powers of intervention conferred on the data-protection authorities and the remedies available to the data subject, grants public-service associations the power to take action against the infringer in the event of an infringement in order to safeguard the interests of consumers?

If Question 1 is answered in the negative:

(2)  In a case such as the present one, in which someone has embedded a programming code in his website which causes the user’s browser to request content from a third party and, to this end, transmits personal data to the third party, is the person embedding the content the “controller” within the meaning of Article 2(d) of [Directive 95/46] if that person is himself unable to influence this data- processing operation?

(3)  If Question 2 is answered in the negative: Is Article 2(d) of [Directive 95/46] to be interpreted as meaning that it definitively regulates liability and responsibility in such a way that it precludes civil claims against a third party who, although not a “controller”, nonetheless creates the cause for the processing operation, without influencing it?

(4) Whose “legitimate interests”, in a situation such as the present one, are the decisive ones in the balancing of interests to be undertaken pursuant to Article 7(f) of [Directive 95/46]? Is it the interests in embedding third-party content or the interests of the third party?

(5)  To whom must the consent to be declared under Articles 7(a) and 2(h) of [Directive 95/46] be made in a situation such as that in the present case?

(6)      Does the duty to inform under Article 10 of [Directive 95/46] also apply in a situation such as that in the present case to the operator of the website who has embedded the content of a third party and thus creates the cause for the processing of personal data by the third party?

The Advocate’s opinion:

–  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data does not preclude national legislation which grants public-service associations standing to commence legal proceedings against the alleged infringer of data protection legislation in order to safeguard the interests of consumers.

–  A person that has embedded a third-party plug-in in its website, which causes the collection and transmission of the user’s personal data (that third party having provided the plug-in), shall be considered to be a controller within the meaning of Article 2(d) of Directive 95/46. However, that controller’s (joint) responsibility is limited to those operations for which it effectively co-decides on the means and purposes of the processing of the personal data.

–   For the purpose of the assessment of the possibility to process personal data under the conditions set out in Article 7(f) of Directive 95/46, the legitimate interests of both joint controllers at issue have to be taken into account and balanced against the rights of the data subjects.

–  The consent of the data subject obtained under Article 7(a) of Directive 95/46 has to be given to a website operator which has embedded the content of a third party. Article 10 of Directive 95/46 shall be interpreted as meaning that the obligation to inform under that provision also applies to that website operator. The consent of the data subject under Article 7(a) of Directive 95/46 has to be given, and information within the meaning of Article 10 of the same directive provided before the data are collected and transferred. However, the extent of those obligations shall correspond with that operator’s joint responsibility for the collection and transmission of the personal data.

The 2 millionth EU trademark application has been reached

flag-2608475_960_720.jpgEUIPO announced the 2 millionth EUTM application which was filed by the Czech company Crefoport s.r.o.

Only in 2018, there were more than 150 000 new applications for EU trademarks. All of that shows the dynamic interest toward these trademarks from around the world. What’s more, every new applicant has to be more careful when filing new EU trademarks taking into account the possible conflicts with already registered signs. One of the option to avoid this negative perspective is conduction preliminary trademark search followed by an in-depth analysis.

When and where Facebook has to remove illegal information – an EU perspective

pexels-photo-1471752.jpegThe Advocate General of the European Court   has given its position on case C‑18/18 Eva Glawischnig-Piesczek срещу Facebook Ireland Limited, which concerns the following:

Ms Eva Glawischnig-Piesczek was a member of the Nationalrat (National Council, Austria), chair of the parliamentary party die Grünen (‘the Greens’) and the federal spokesperson of that party.

Facebook Ireland Limited, a company registered in Ireland having its headquarters in Dublin, is a subsidiary of the United States corporation Facebook Inc. Facebook Ireland operates, for users outside the United States and Canada, an online social network platform accessible at the address http://www.facebook.com. That platform enables users to create profile pages and to publish comments.

On 3 April 2016 a user of that platform shared on their personal page an article from the Austrian online news magazine oe24.at entitled ‘Greens: Minimum income for refugees should stay’. That publication had the effect of generating on the platform a ‘thumbnail’ of the original site, containing the title and a brief summary of the article, and a photograph of the applicant. That user also published, in connection with that article, an accompanying disparaging comment about the applicant accusing her of being a ‘lousy traitor of the people’, a ‘corrupt oaf’ and a member of a ‘fascist party’. The content placed online by that user could be consulted by any user of the platform in question.

By letter of 7 July 2016, the applicant, inter alia, asked Facebook Ireland to delete that comment.

As Facebook Ireland did not remove the comment in question, the applicant brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) and requested that court to issue an injunction ordering Facebook Ireland to cease publication and/or dissemination of the photographs of the applicant if the accompanying message disseminated the same allegations and/or ‘equivalent content’, namely that the applicant was a ‘lousy traitor of the people’ and/or a ‘corrupt oaf’ and/or a member of a ‘fascist party’.

On 7 December 2016 the Handelsgericht Wien (Commercial Court, Vienna) made the interlocutory order applied for.

Facebook Ireland subsequently disabled access in Austria to the content initially published.

On appeal, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) upheld the order made at first instance as regards the identical allegations. In doing so, it did not grant Facebook Ireland’s request that the interlocutory order be limited to the Republic of Austria. On the other hand, it held that the obligation to cease the dissemination of allegations of equivalent content related only to those brought to the knowledge of Facebook Ireland by the applicant in the main proceedings, by third parties or otherwise.

The courts of first and second instance based their decisions on Paragraph 78 of the UrhG and Paragraph 1330 of the ABGB, and took the view, in particular, that the public comment contained statements which were excessively harmful to the applicant’s reputation and gave the impression that she was involved in unlawful conduct, without providing the slightest evidence in that regard. Nor, according to those courts, was it permissible to rely on the right to freedom of expression for statements relating to a politician if there was no connection with a political debate or a debate that was in the public interest.

The two parties to the main proceedings brought actions before the Oberster Gerichtshof (Supreme Court, Austria), which considered that the statements at issue were intended to damage the applicant’s reputation, to insult her and to defame her.

The referring court is required to adjudicate on the question whether the cease and desist order made against a host provider which operates a social network with a large number of users may also be extended, worldwide, to statements with identical wording and/or having equivalent content of which it is not aware.

In that regard, the Oberster Gerichtshof (Supreme Court) states that, according to its own case-law, such an obligation must be considered to be proportionate where the service provider was already aware that the interests of the person concerned had been harmed on at least one occasion as a result of the contribution of a recipient of the service and where the risk that other infringements would be committed is thus demonstrated.

It was in those circumstances that the Oberster Gerichtshof (Supreme Court), by decision of 25 October 2017, received at the Court on 10 January 2018, decided to stay proceedings and to refer the following questions to the Court:

‘(1) Does Article 15(1) of Directive [2000/31] generally preclude any of the obligations listed below of a host provider which has not expeditiously removed illegal information, specifically not just this illegal information within the meaning of Article 14(1)(a) of [that] directive, but also other identically worded items of information:

(a)  worldwide?

(b)  in the relevant Member State?

(c)  of the relevant user worldwide?

(d)  of the relevant user in the relevant Member State?

(2)  In so far as Question 1 is answered in the negative: Does this also apply in each case for information with an equivalent meaning?

(3)   Does this also apply for information with an equivalent meaning as soon as the operator has become aware of this circumstance?’

The Advocate’s opinion:

(1) Article 15(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘the Directive on electronic commerce’) must be interpreted as meaning that it does not preclude a host provider which operates a social network platform from being ordered, in the context of an injunction, to seek and identify, among all the information disseminated by users of that platform, the information identical to the information that has been characterised as illegal by a court that issued that injunction. In the context of such an injunction, a host provider may be ordered to seek and identify the information equivalent to that characterised as illegal only among the information disseminated by the user that disseminated that illegal information. A court adjudicating on the removal of such equivalent information must ensure that the effects of its injunction are clear, precise and foreseeable. In doing so, it must weigh up the fundamental rights involved and take account of the principle of proportionality.

(2) As regards the territorial scope of a removal obligation imposed on a host provider in the context of an injunction, it should be considered that that obligation is not regulated either by Article 15(1) of Directive 2000/31 or by any other provision of that directive and that that provision therefore does not preclude that host provider from being ordered to remove worldwide information disseminated via a social network platform. Nor is that territorial scope regulated by EU law, since in the present case the applicant’s action is not based on EU law.

(3)  Article 15(1) of Directive 2000/31 must be interpreted as meaning that it does not preclude a host provider from being ordered to remove information equivalent to the information characterised as illegal, provided that a removal obligation does not entail general monitoring of the information stored, and is the consequence of awareness resulting from the notification made by the person concerned, third parties or another source.

Some answers regarding the EU Copyright reform

flag-2608475_960_720.jpgThe European Commission published answers to a variety of questions regarding the Copyright reform that has been approved recently. The questions are as follow:

1. The European Parliament voted on the new copyright rules at EU level – what are they about?
2. Why do we need to modernise the EU copyright rules?
3. Are the new copyright rules limiting users and their freedom online?
4. Will the Directive impose upload filters online?
5. Will the Copyright Directive prevent users from expressing themselves on internet in the same way as now? Will memes and GIFs be banned?
6. How will the new Copyright rules tackle the discrepancy between the remuneration of creators and that of certain online platforms (the so-called ‘value gap’)?
7. How will the new copyright rules on user-uploaded platforms benefit the users?
8. What are the services covered by the new rules on user-uploaded platforms?
9. What will be the special regime for startups and smaller enterprises?
10. What will happen to online encyclopaedias (like Wikipedia) that are based on content uploaded by users?
11. How will the new press publishers’ right work?
12. Are small and emerging press publishers going to be affected by the reform?
13. Is the new Copyright Directive creating a “hyperlink tax”?
14. With the new rules, will the use of “snippets” be forbidden?
15. How will the new Directive benefit journalism and journalists?
16. How will the Directive ensure fair remuneration for individual authors and performers?
17. How will the new copyright rules strike a fairer balance in the relationships between creators and their contractual partners?
18. What is the contract adjustment mechanism? Does it interfere with contractual freedom?
19. What is the revocation mechanism and why is it needed?
20. What are the new exceptions to copyright laid down in the Copyright Directive?
21. How will the new copyright rules benefit researchers?
22. What is the purpose of the other, general, text and data mining exception?
23. Who will benefit from the new teaching exception?
24. Will the new copyright rules enhance the preservation and availability of cultural heritage?
25. What will it change for users with regards to “public domain” content?
26. How will the new copyright rules foster the availability of EU audiovisual works on video-on-demand platforms?

You can find the answers here.

How online stores to communicate with their customers – the Amazon case?

ecommerce-3021581_960_720The Advocate General of the European Court G. PITRUZZELLA has given an opinion on case  C‑649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände, Verbraucherzentrale Bundesverband e. V. v Amazon EU Sàrl., which concerns the following:

The Bundesverband alleges that Amazon, an online sales platform, has failed to fulfil, in a clear and comprehensible manner, its obligations regarding the provision of information to consumers and has thereby infringed the German legislation implementing Directive 2011/83.

In particular, the applicant in the main proceedings submits that Amazon does not, prior to the conclusion of (online) distance sales, inform customers of a fax number; it also requires customers to answer a series of questions, including questions concerning their identity, before displaying the telephone number of its general helpline.

The applicant in the main proceedings alleges that Amazon is thus infringing the statutory consumer protection rules in force in Germany which, in implementation of Directive 2011/83, require traders to indicate, in a clear and comprehensible manner, their geographical address and telephone number and, where appropriate, their fax number and email address, so as to enable consumers to contact them quickly and efficiently.

Amazon does offer an automated call-back facility and an online chat service, but these are not, according to the applicant in the main proceedings, sufficient to discharge its legal obligations.

Having brought proceedings before the Landgericht Köln (Regional Court, Cologne, Germany), which rejected its application on 13 October 2015, the Bundesverband brought an appeal before the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany).

By judgment of 8 July 2016, that court dismissed the appeal and upheld the judgment at first instance.

Finally, the Bundesverband brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice).

The Bundesgerichtshof (Federal Court of Justice), being in doubt as to the consistency with EU law of legislation such as the German legislation at issue, which requires traders to give a telephone number in every case, rather than only where available, made the reference for a preliminary ruling to the Court of Justice.

The Bundesgerichtshof (Federal Court of Justice) decided to ask the Court about the proper interpretation of the expression ‘where available’, used in Article 6(1)(c), whether the list of means of communication set out in that provision is exhaustive or not, and about the scope of the obligation of transparency incumbent on traders.

It was in that context that the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)  May the Member States enact a provision which — like the provision in point 2 of the first sentence of Article 246a(1)(1) of the EGBGB — obliges traders when entering into distance contracts to give consumers their telephone number prior to acceptance of the contract not only where they have one available but in every case?

(2)  Does the expression “gegebenenfalls” (meaning “where available”) used in [the German language-version of] Article 6(1)(c) of Directive [2011/83] mean that traders must, if they decide to enter into distance contracts, provide information solely about the means of communication that are already actually available within their business, and that they are therefore not required to set up a new telephone or fax connection or email account?

(3)  If the second question is answered in the affirmative:

Does the expression “gegebenenfalls” (meaning “where available”) used in [the German language-version of] Article 6(1)(c) of Directive [2011/83] refer solely to the means of communication that are already available in the business and are actually used by the trader for communication with consumers when entering into distance contracts, or does it also refer to means of communication that are available in the business but have hitherto been used by the trader exclusively for other purposes, such as to communicate with other traders or authorities?

(4)  Is the list of means of communication (telephone, fax and email) set out in Article 6(1)(c) of Directive [2011/83] exhaustive, or may traders also use other means of communication not mentioned in that list, such as online chat services or call-back facilities, provided that they ensure rapid contact and efficient communication?

(5) Is it relevant to fulfilment of the obligation of transparency under Article 6(1) of Directive [2011/83] — in accordance with which traders must inform consumers in a clear and comprehensible manner of the means of communication referred to in Article 6(1)(c) of the directive — that that information is supplied quickly and efficiently?’

The Advocate’s position:

(1) Given its function of full harmonisation and in light of its literal, systematic and teleological interpretation, Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, precludes national legislation which obliges traders, when entering into distance contracts, to give consumers their telephone number prior to acceptance of the contract not only where they have such a number but in all cases.

(2) The expression ‘gegebenenfalls’ used in the German-language version of Article 6(1)(c) of Directive 2011/83 must be interpreted, literally, systematically and teleologically, as not imposing on traders any obligation, if they decide to enter into distance contracts, to set up a new telephone or fax connection or email account.

(3) The expression ‘gegebenenfalls’ used in the German-language version of Article 6(1)(c) of Directive 2011/83 must be interpreted, literally, systematically and teleologically, in the sense that only those means of communication which a trader has decided to employ in dealings with consumers when concluding distance contracts are ‘available’ within the undertaking.

(4) The list of means of communication set out in Article 6(1)(c) of Directive 2011/83 (i.e. telephone, fax and email) is not exhaustive and traders may also use other means of communication not mentioned in that list, such as online chat services or call-back facilities, provided that, whatever means of communication are employed, they actually offer consumers a choice of what means to use and ensure rapid contact and efficient communication, and provided that the information regarding those means of communication is provided in a clear and comprehensible manner.

(5)  Fulfilment of the obligation of transparency under Article 6(1) of Directive 2011/83 requires that consumers should be able to access the information regarding the means of communication which traders make available to them in a simple, efficient and relatively rapid manner.