PROCESSING OF PERSONAL DATA IN THE CONTEXT OF COMBATTING COVID-19: THE STATEMENTS ADOPTED BY THE EUROPEAN DATA PROTECTION BOARD AND THE EUROPEAN DATA PROTECTION SUPERVISOR ON 16th AND 20th MARCH 2020.

23/03/2020

On 16th March 2020, the European Data Protection Board underlined that the data controller and processor must ensure the protection of the personal data even in these exceptional times. Nevertheless, the protection of personal data is a controversial issue due to the increasing demand from public authorities and private entities for tighter surveillance measures.

 

Governments, public and private organizations throughout Europe are taking measures to contain and mitigate the effects of COVID-19. This can involve the processing of different types of personal data. There is no doubt that an effective epidemic management is also based on the collection and analysis of health data (and not only). However, such measures may raise privacy concerns both under the European Data Protection Regulation (hereinafter: GDPR) and under national legislation. Furthermore, these measures are part of a wider context of strong limitation of fundamental rights of the individual, ranging from the freedom of movement, to social rights, to the right of pursuing its own economic activity and thus be able to support oneself and one’s family. Said limitations have not given rise to many critical voices. On the contrary, it has been argued that these measures are compatible with our Constitution, since the right to health would prevail over all other rights that are temporarily compressed, with the only exception of the rights of regarding the respect for the dignity of human beings and the prohibition of unfair discriminatory measures. Also the right to privacy should therefore be considered within a balance of interests: it has to be asked whether it is preferable to have a general stop of all activities, with citizens confined to their homes, or rather a contagion control system that allows movement wherever possible, also using the most advanced technology, and using privacy regulations as a tool to ensure that the control mechanisms are adequate, proportional and strictly limited to the minimum necessary. To do this, it is also necessary to restore the efficiency of the judicial system, which is the only safeguard against abuse, as soon as possible. Clearly, in circumstances in which the courts are paralyzed, no kind of limitations, whatever they may be (including privacy limitation) can give citizens confidence regarding the respect of their rights.

Effective measures to reduce the spread of covid-19 vs fundamental rights
The balance between effective measures against Covid-19 and the respect of fundamental rights – including the right to privacy – is of key importance, also considering that an important role to reduce the spread of the virus will be played by technology. Indeed, some countries are managing the current pandemic through massive use of apps and software with more or less invasive privacy implications. For example, the app that informs of the presence of infected people within 100 meters of the user’s location; or rather, the app that tracks the movements of infected people in order to reconstruct their entire network of contacts and illustrate their movements. Nowadays, in the name of the emergency and fight against the virus, control proposals have been made, which are exceptional compared to our traditional system of shared values and legal principles. These proposals for the massive digital tracking of citizens are based on the idea that increased surveillance can lead to a more effective fight against the virus. In this context, the European legislation on the protection of personal data has been criticized as considered to be an obstacle to the adoption of measures that could reduce the spread of the virus.
In this regard, on 16th March 2020, the European Data Protection Board (hereinafter: EDPB) published a statement in which, besides specifying that the GDPR rules do not hinder measures taken in the fight against the coronavirus pandemic, it reiterates the importance of protecting personal data even in an emergency context. In this regard, Andrea Jelinek, Chair of the EDPB, stressed that “Data protection rules (such as GDPR) do not hinder measures taken in the fight against the coronavirus pandemic. However, I would like to underline that, even in these exceptional times, the data controller must ensure the protection of the personal data of the data subjects. Therefore, a number of considerations should be taken into account to guarantee the lawful processing of personal data.”
(the full statement is available here:
https://edpb.europa.eu/news/news/2020/statement-edpb-chair-processing-personal-data-context-covid-19-outbreak). The same content was highlighted in the statement of 19th March in which the EDPB specified the requirements of a lawful processing of personal data in the current emergency context (https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_statement_2020_processingpersonaldataandcovid-19_en.pdf).

Processing of personal data in the European legislative framework
The EDPB statement recalls the provisions of the GDPR which indicate the specific cases in which the processing of personal data is allowed. In particular:
– Article 6 of the GDPR, which allows the processing of personal data without the consent of the data controller when it is necessary in order to protect the vital interest of the data subject or of another natural person, or when it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
– Article 9 of the GDPR, which allows the processing of particular categories of personal data, such as health information, without the consent of the data subject, for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health.
On the other hand, with regard to the processing of telecom data, such as location data, Directive 2002/58/EC (the so-called ePrivacy Directive) is mentioned, which allows the use of an individual’s location data only if made anonymous or with the consent of the data subject. The EDPB stressed that under Article 15 of that directive, Member States may adopt legislative provisions restricting the rights and obligations contained in the directive if such restriction constitutes a necessary, appropriate and proportionate measure to safeguard national security and public safety.

Conclusions
The effective protection of personal data in the context of the measures taken by Member States to fight against COVID-19 appears to be confused and fragmented: some countries have adopted a more permissive approach to controls (i.e. Denmark, Ireland, Poland, Spain), others more restrictive (i.e. France, Luxembourg, the Netherlands, Belgium).
The EDPB’s recent statement recalls European privacy legislation in a context where citizens cannot effectively exercise their rights due to the lockdown of entire countries. The very rule quoted by the EDPB to protect telecommunication data (i.e. Article 15 ePrivacy Directive) specifies that in the exceptional cases described above, the Member State is obliged to put in place adequate safeguards, such as guaranteeing individuals the right and access to judicial remedy. But is access to justice really guaranteed in this emergency context? Or rather Article 15 of the ePrivacy Directive will be applied without the necessary safeguards?
A more decisive statement from the EDPB would have been necessary, reminding the Member States of the importance of not ignoring the application of the essential principles of privacy, even in an emergency context like the present one. In this regard, the recent statement by the Italian data protection Supervisor (hereinafter: IDPS) of last 2nd March is noteworthy. The IDPS affirmed that autonomous initiatives concerning the collection of health data of users and workers that have not been provided by the law or ordered by the competent bodies are not allowed (the full statement of the Italian data protection Supervisor is available here: https://www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9282117).
A clear declaration supporting fundamental rights has not been adopted either by the European Data Protection Supervisor (hereinafter: EDPS). In its statement of last 20th March, the EDPS indicated COVID-19 as the game changer of the current context. Indeed, the EDPS has announced a new strategy for the next five years that will include a review of the current EDPS strategy: “We will all be confronted with this game changer in one way or another. And we will all ask ourselves whether we are ready to sacrifice our fundamental rights in order to feel better and to be more secure”(https://edps.europa.eu/press-publications/press-news/blog/moment-you-realise-world-has-changed-re-thinking-edps-strategy_en).

Simona Lavagnini, Camilla Macrì


ROGER FEDERER TAKES “HIS” RF LOGO BACK

17/03/2020

A few days ago the news that the worldwide famous trademark “RF”, acronym of the initials of the world tennis star Roger Federer, has been sold by Nike, original owner of the trademark and its rights of exploitation, to Tenro AG, a company directly controlled by the Swiss champion that manages the portfolio of IP assets attributable to him.

 


The background.
The sign in question, which as seen reproduces in stylized characters the initials of the Swiss tennis player, was created in 2008 by the sportswear giant Nike, to which Federer has been linked by a sponsorship contract that dates back to 1994. The logo has therefore been registered as a trademark in the most diverse countries of the world, including Italy (trademark no. 302008901644561), the European Union (trademark no. 6819395) and the United States (trademark no. 3745413). But by whom? Although the trademark was used (and in fact usable) only in connection with the sport activity carried out by Federer, the subject requesting the trademarks – and the consequent owner of the registrations – was not Federer but its sponsor, Nike. The “RF” brand has in a very short timeframe acquired planetary success (rectius, reputation) becoming one of the most recognizable and distinctive signs in the world of tennis and sports in general and reaching a market value of 27 million dollars according to the American magazine Forbes.
The Federer-Nike-RF triangulation continued with success until, in Summer 2018, the divorce between the American sport apparel giant and the Swiss athlete was announced following the termination of the Nike-Federer sponsorship contract and the transfer of the latter towards the Japanese company Uniqlo, with which Federer signed a new partnership that will bring him the beauty of $300 million over the next ten years.
The change of sponsorship made it immediately arise the following concern in tennis fans and IP legal experts: what will happen to the RF logo? On the one hand, in fact, the rights of exploitation of the trademarks concerning the sign remained the exclusive property of Nike, the only subject that could legitimately decide the times and means of use of the trademarks: consequently, any possible use by Federer of the logo or of another sign similar to it would have determined an infringement of Nike’s trademarks. On the other hand, the logo was (and indeed is) closely linked to the person of Roger Federer and his sports performances, in fact reducing (if not totally eliminating) Nike’s interest in using the trademark after the termination of the relationship with the athlete. A possible use of the trademarks in the absence of Federer’s consent, or in any case dissociated from his sports figure, would also have raised serious profiles of deceptiveness of the trademark itself, with the risk of seeing the famous trademark declared invalid under (with regard to EU) Art. 58/2 EU Reg. 2017/1001. In addition to the above, Federer himself never hid to jealously observe that “this is something very important to me, and to my fans in particular. They are my initials. They are mine”.

The assignment.
The result of such an impasse was the cease of any use of the brand for almost two years (except for footwear worn by Federer in tournaments, for which a separate sponsorship contract continued to be in force). Until when, in February 2020, the involved parties managed to find a shared out-of-court solution – the economic details of which have not yet been revealed – which led to the assignment of the renown brand from Nike to the already mentioned company controlled by Federer (note, no longer to the current technical sponsor Uniqlo): the transfer already results in the databases of some trademark offices, such as the U.S. and Chinese ones (see https://www.tmdn.org/tmview/welcome.html?lang=it#) and within a few days it will probably be formalized with regard to the other relevant territories, too. Only time will tell how the new owner Roger Federer will decide to use his trademarks. In the meantime, fans can get back to quivering.

Giorgio Rapaccini


KOMMUNICATION BEZÜGLICH DES COVID-19-NOTFALLS

13/03/2020

In Übereinstimmung mit den zuletzt erlassenen Regierungserlassen hat LGV Avvocati ihre Tätigkeit neu organisiert und garantiert die Kontinuität aller Aktivitäten. Die Telefonzentrale ist aktiv. Darüber hinaus können Sie uns wie gewohnt über unsere E-Mail-Adressen und auch über die auf unserer Website verfügbaren Mobiltelefonnummern erreichen. Wir haben erfolgreich das SMART WORKING Arbeitsprotokoll aktiviert, das die Qualität und Schnelligkeit unserer Dienstleistungen gewährleistet. Außerdem haben wir alle erforderlichen Gesundheits- und Sicherheitsmaßnahmen sowie Verhaltens- und Organisationsmaßnahmen ergriffen, um diesen Notfall zu bewältigen und unsere Kunden und unsere Mitarbeiter zu schützen. Wir bleiben für Sie erreichbar und wünschen allen, dass sie diesen Notfall erfolgreich bewältigen.

ANTITRUST FINES A WELL-KNOWN TELECOMMUNICATIONS COMPANY 116 MILLION EUROS FOR HINDERING THE DEVELOPMENT OF FIBER.

11/03/2020

On February 25, 2020, the Antitrust Authority (AGCM) concluded the A514 investigation procedure by establishing that a well-known company active in the telecommunications sector (infra “the Company”), has implemented an anti-competitive strategy aimed at hindering the development of investments in ultra-wideband network infrastructure [1].

 

THE BACKGROUND:
The A514 investigation procedure originated from an initial report filed by a public company, which reported alleged anti-competitive conduct by the Company during several tenders launched by the same reporting company in 2016, in order to ensure coverage of the areas of market [2] failure in Italy as part of the Italian Strategy for the development of the Ultra-Large Band. During the months immediately following this first report, further communications were added to this first report concerning certain elements relating to the conduct already contested previously.
On June 28, 2017, the AGCM, considering the multiple reports collected to be of a relevant nature, decided to initiate proceedings against the Company pursuant to Article 102 TFEU, in order to verify the possible abuse of the dominant position by the telecommunications company.

THE COMPLAINED CONDUCTS:
When initiating the procedure, the Antitrust Authority assumed that the conduct of the Company was capable of achieving two specific objectives of harming competition: (i) firstly, to hinder the conduct of the tender procedures in order to preserve a historical monopolistic position in the territories defined as “white areas” and to avoid the entry into the market of the legitimate company winner of the tenders; (ii) secondly, to gain customers in advance on the new segment of ultra-wideband retail telecommunications services, also with anti-competitive commercial policies (non-replicable prices, lock-in). In addition to these assumptions of alteration of normal competition, on February 14, 2018 the Antitrust Authority included an additional reason for analysis in its preliminary assessment. In fact, an objective extension of the scope of the measure was decided, with reference “to the conduct concerning the Company’s wholesale pricing strategy on the market for wholesale broadband and ultra-wideband access services and the use of privileged information concerning the customers of alternative operators to the Company on the market for retail broadband and ultra-wideband telecommunications services”.

THE ESSENCE OF THE MEASURE:
Following a prolonged investigation phase, on February 25, 2020, the AGCM officially decided to fine the Company €116 million euros, considered liable for having intentionally engaged in anti-competitive conduct which, taken as a whole, allowed to integrate a strategy qualified as a dominant position within the meaning of Article 102 TFEU. Specifically, the Company was held liable for having engaged in “conduct aimed at preserving its market power in the provision of fixed network access services and telecommunications services to end customers” and for having “hindered the entry of other competitors, preventing both a transformation of the market in accordance with conditions of infrastructure competition and regular competition in the market for retail services to end customers”. In fact, the first two points of complaint highlighted in the initial reports have been fully accepted and the Company’s responsibility for hindering the conduct of tenders under the Government’s National Ultra-Wideband Strategy has been established. On the other hand, the point relating to the alleged pricing strategy put in place by the Company together with the alleged use of insider information on the customers of the alternative operators has completely fallen.
For these reasons, the AGCM has decided to fine the Company of a significant financial burden in order to provide the necessary deterrent to possible future anti-competitive conduct. In any case, in quantifying the fine, the Antitrust Authority has positively assessed the Company’s conduct in the final phase of the investigation procedure, aimed at ensuring that the promotional offers submitted had overall economic conditions that were fully replicable by other competing operators.
With respect to the payment of this fine, the AGCM has also specified that it has postponed the deadline for compliance to October 1, 2020, “in view of the serious difficulties facing our country’s production system, resulting from the extraordinary epidemiological emergency from COVID-19, as well as the high amount”.
Finally, the Company immediately communicated its doubts about the severe ruling, defining as unjustified the fine imposed by the Antitrust Authority and also announcing a clear willingness to appeal to the Regional Administrative Court (“TAR”).

[1] It is possibile to find out the full measure at the following link: https://www.agcm.it/dotcmsdoc/allegati-news/A514%20chiusura.pdf
[2] The areas with market failure are commonly defined as “white areas”, due to their characteristics of low population density and jagged location on the territory for which only direct public intervention can guarantee the resident population a connectivity service. Without public subsidies, in fact, the market in itself would not justify the innovative infrastructure in these areas.

Paolo Rovera e Alessandro Bura


THE STREETWEAR TRADEMARK “BOY LONDON” DECLARED INVALID BECAUSE IT IS CONTRARY TO THE ACCEPTED PRINCIPLES OF MORALITY.

04/03/2020

With its recent Decision No 20 461 C, the Invalidity Division of EUIPO declared the trademark “BOY LONDON” invalid on the grounds that it evokes Nazi symbolism and is, therefore, contrary to the accepted principles of morality according to Article 7(1)(f) RMUE.

 

The Fact
The Invalidity Division of the EUIPO, by decision of 20 December 2019, declared the clothing trademark BOY LONDON invalid as contrary to morality pursuant to Article 7(1)(f) RMUE.
The figurative trademark in dispute contained a figurative component representing an eagle with wings outstretched with its look to the right resting its claws on the letter “O” of the word “BOY”, written in capital letters under the image of the eagle. Below the word “Boy”, the word “London” appears in significantly smaller characters:

The applicant’s arguments were based on the assumption that the contested sign was a clear representation of the so-called “Parteiadler”, one of the emblems of the German National Socialist Party:

The contrast to accepted principles of morality and public order as grounds for the invalidity of trademarks
As is well known, Article 7(1)(f) RMUE prohibits the registration of trademarks contrary to public policy and morality. The wording of this principle is very broad and requires prudent application taking into consideration, on the one hand, the right of traders to freely use signs they wish to register as trademarks and on the other hand the right of the public not to be disturbed by offensive, threatening or abusive marks. The purpose of the prohibition of registration of trademarks contrary to morality and public policy is not to avoid the commercial use of the sign but to avoid registration of the trademark in cases where the grant of the monopoly that offends against certain basic values of civilised society. Furthermore, it seems necessary to specify that Article 7(2) states that Article 7(1)(f) applies even if the grounds for refusal exist only in part of the Community. The assessment of the existence of an impediment to registration on grounds of contrary to public policy or morality cannot, in any case, be based either on the perception of the part of the public that is easily impressionable or offensive, or on the perception of the part of the public that is imperturbable, but must be made based on criteria of a reasonable person (see 14/11/2013, Ficken Liquors, T-54/13, EU:T:2013:593). For the purposes of examining the restrictions to registration for reasons contrary to public morality or public order, the Invalidity Division – also in the decision in comment – recalls that the relevant public cannot be limited to the target audience of the goods and services for which registration is requested, but, on the other hand, it is necessary to take into account that the sign contrary to public morality or public order could offend those who might accidentally be confronted in their daily lives.

The decision of the Invalidity Division of Euipo
The Invalidity Division, upholding the applicant’s argument, declared the trademark in subject contrary to morality, since the “message evoked by the sign and perceived by the public recalls Nazi symbolism” and therefore invalid within the meaning of Article 7(1)(f) RMUE in combination with Article 59(1)(a).
First, from a visual point of view, the Invalidity Division considered that the relevant public could perceive the contested trademark as a reference to Nazi symbolism, even though the trademark, unlike the Parteiadler, does not show the swastika and bears the word element BOY LONDON. The omission of the swastika and the addition of the word component, however, do not change the public’s perception of the trademark, according to the assessment of the Invalidity Division, which refers to Advocate General Bobek’s Opinion in Case 240/18P. In that opinion, the Advocate General had found that “morality refers to values and beliefs to which a particular company adheres at a given time (…). Unlike the descending nature of public policy, morality develops from the top-down”. For this reason, in order to assess whether a sign is contrary to morality, it is necessary to use evidence relating to the specific case to ascertain how the relevant public would react if the sign was used to distinguishing goods or services.
In the present case, in support of its argument, the applicant filed, inter alia, several articles of newspapers, magazines and online forums in which both consumers and the mass media compared the contested mark to Nazi symbolism. That documentation showed that, although not all users agree that the contested mark refers to Nazi symbolism, “a non-marginal part of the public perceives the eagle contained in the sign as a reference to the Nazi emblem” (see p. 16 Invalidity Decision No 20 461 C).
In view of all this, the Invalidity Division has therefore declared the contested trademark invalid, establishing that it refers to the Nazi party and communicates an image that is perceived by the relevant public as a reference to an ideology contrary to the fundamental values of the European Union. In particular, “the contested MUE is therefore of such a nature as to shock or offend, not only the victims of the massacres carried out by the Nazi party but also anyone in the territory of the Union who is confronted with that mark and has a normal degree of sensitivity and tolerance”.

Paolo Passadori