GDPR HARMONIZATION: ANOTHER WAY

18/05/2018

With the second draft of the legislative decree of harmonization to the GDPR, the legislator significantly altered the provisions of the previous version, abandoning the idea of a total repeal of the Privacy Code.

 

A few days before the entry into force of the GDPR, scheduled for 25 May 2018, the legislative decree of harmonization has not yet taken a definitive form, despite its approval must take place before 21 May. A second draft of the text of the decree has recently been received by the general accountant of the State. The content of the text considerably differs from that of the previous one, dating back to March. If the latter provided for a total repeal of the current Legislative Decree 196/2003, better known as the Privacy Code, the new version, which consists of 28 articles, opts instead for a more delicate work of only selective abrogation, enriched by some reformulations as well as by additions to the current text.

Among the most significant aspects that differentiate the second draft from the first, is, to begin with, that concerning art. 167 of the Privacy Code, which imposes criminal sanctions for the unlawful processing of personal data. The full decriminalization initially conceived by the legislator, which would have also led to the repeal of the provision under examination in order to replace the criminal sanctions with administrative sanctions, has failed in the new text. According to the new version, not only the art. 167 would remain untouched, but two additional cases would be added to it, namely the “Illegal disclosure and dissemination of personal data referable to a large number of people” (Article 167bis), as well as the “Fraudulent acquisition of personal data” (Article 167ter), punished respectively with imprisonment from one to six years and with imprisonment from one to four years.

The profiles related to the protection of the under-sixteen year old’s are also of interest, since the art. 2-quinquies of the new draft, according to the provisions of Article 8 of the GDPR, provides that the processing of personal data of the under-sixteen year old’s is lawful on condition that consent is given or authorized by the holder of parental responsibility.

This is the other way in which the new draft moves away from the previous one, where it was suggested to lower this limit to the age of fourteen.

It remains to be seen what measures will actually be adopted by the main social networks to verify the actual age of their users.

The messaging service Whatsapp, owned by Facebook, has for now required a sort of self-certification. In fact, following the last update of the application, before the access to your chats you must confirm you are sixteen years old or above. It is clearly useless measure, since it will be enough for the under sixteen years to lie about their age, without being subjected to any further control over the veracity of what was declared, in order to continue using the app exactly as before. Moreover, even crossing the data of Whatsapp with those of Facebook, the problem would not be solved, because the users could falsify their date of birth on the social network. It, therefore, appears complicated to predict which type of verification could possibly be introduced so that the adjustment to the GDPR can acquire a real meaning.

In the hypothesis in which the under sixteen years instead declare their real age, Facebook (as well as Instagram, always owned by him) has planned to request the insertion of the email address of a parent, so that the latter can give consent to the use of the social by the child.


EUIPO REFUSES TO REGISTER THE EUROPEAN TRADEMARK ‘SUPREME’

10/05/2018

The Office of the European Union for Intellectual Property has declared inadmissible the application for registration of a European trade mark filed by Chapter 4 for the mark “Supreme”, following review, considering the sign to be descriptive and devoid of distinctive character.

 

The European Union Intellectual Property Office (EUIPO) has decided to re-examine the application for registration of the European trademark proposed by Chapter 4 for the trademark “Supreme” for clothing, accessories, retail and online sale (classes 13, 25 and 35 of the Nice Classification). The Office’s decision was based on the observations of a third party.

Specifically, in the review procedure, the Supreme mark was assessed as descriptive, as the relevant consumers would perceive the sign as containing information that the goods and services for which Chapter 4 applied (handbags, clothing, retail services for clothing etc.) are of the highest quality. Consequently, according to EUIPO, consumers would be misled by that sign by giving it the ability to provide information on the very quality of the goods and services in question, which, in fact, bear the ‘Supreme’ mark.

Furthermore, the Office has argued that since the mark has a clear descriptive character, it is itself devoid of any distinctive character and thus unable to fulfil the essential function of the mark (i.e. to distinguish the goods or services of one undertaking from those of others) within the meaning of Article 7(1)(b) of the RMUE. In the opinion of the EUIPO, the sign in question is perceived by the relevant public merely as a laudatory promotional message capable of indicating the characteristics of the goods and services bearing it, highlighting its positive aspects, without any indication as to their commercial origin. EUIPO then goes so far as to state that although the sign for which Chapter 4 requested protection contains some elements which give it a certain degree of stylisation (consisting of fairly common and perfectly legible white characters, on a rectangular red background), the nature of those elements is so negligible that they do not give the mark as a whole any distinctive character.

By communication of 25 April 2018, EUIPO therefore refused the application for registration of the European trade mark filed by Chapter 4 of the Supreme trade mark, declaring it inadmissible and stating the reasons for its rejection on the basis of Article 7(1)(b) and (c) of Article 7(2) of the RMUE. Chapter 4, however, may present any observations on the objections raised by EUIPO within a period of two months from the notification of the communication of 25 April 2018; if any observations are not made within that period, the request will be rejected.


LEGATI ALL’UE – IL REGNO UNITO RATIFICA L’ACCORDO SUL TRIBUNALE UNIFICATO DEI BREVETTI (TUB)

04/05/2018

Il Regno Unito ha ratificato l’accordo relativo alla Corte Unificata dei Brevetti che crea una corte sovranazionale competente per le controversie in materia di brevetti tra gli Stati contraenti. La ratifica dimostra la volontà del governo britannico di continuare ad impregnarsi con l’attività di regolamentazione europea nel post Brexit

 

Il 26 aprile 2018 il governo britannico ha confermato che il Regno Unito ha ratificato l’accordo TUB, il trattato internazionale che prevede la creazione di un nuovo quadro di applicazione giudiziaria per la risoluzione delle controversie relative ai brevetti unitari e sui brevetti europei per i quali non è stata esercitata la rinuncia all’applicazione del Trattato.

La ratifica del Regno Unito era prevista già nel novembre 2016, ma la decisione del Regno Unito di lasciare l’Unione Europea ha sollevato dubbi sul fatto che la Gran Bretagna avrebbe ratificato il trattato o utilizzato il suo potenziale ritiro dal TUB come moneta di scambio nei negoziati Brexit.

Nella sua dichiarazione, il governo ha confermato che la partecipazione del Regno Unito al nuovo sistema TUB dopo Brexit resta incerta, nonostante la ratifica dell’accordo. L’accordo TUB prevede attualmente che i Paesi che partecipano al nuovo brevetto unitario e al nuovo sistema TUB siano membri dell’UE.

Affinché il nuovo sistema TUB entri in vigore, almeno 13 paesi dell’Unione, tra cui i tre con il maggior numero di brevetti europei – Germania, Francia e Regno Unito – devono adottare una legislazione nazionale per ratificare l’accordo TUB. La Francia e il Regno Unito lo hanno fatto, insieme ad altri 14 paesi.

Ora che il Regno Unito ha ratificato il trattato, rimane però un ostacolo prima che esso possa entrare in vigore, dal momento che la ratifica tedesca è stata bloccata da un ricorso contro il TUB pendente davanti a BVerfG.


FASTWEB FINED (AGAIN) BY THE COMPETITION AND MARKET GUARANTOR AUTHORITY (“AGCOM”) FOR MISLEADING ADVERTISING

24/04/2018

With the decision rendered at the end of the hearing of April 11, 2018, the Competition and Market Guarantor Authority imposed a pecuniary sanction of more than 4 million Euros against the giant of electronic communications Fastweb, for having it made unfair and misleading commercial practices pursuant to articles 20 paragraph 2, 21 and 22 of the Consumer Code.

 

The conduct of Fastweb banned by the Guarantor concerns a series of advertising claims – publicized via TV, internet, brochures and advertising – aimed at emphasizing the integral and exclusive use of optical fiber and the achievement of the highest performance in terms of speed and reliability of the connection omitting, however, to adequately inform the consumers about the characteristics of the transmission technology used, the geographical limits of the offer and the real potential of the offered fiber service. According to the Guarantor, such conduct is in contrast with articles 20, 21 and 22 of the Consumer Code since it did not put the consumer in a position to identify the elements that specifically characterize the offer, with particular reference to the different type of services related to the technology underlying the various types of offer; moreover, still according to the Guarantor, Fastweb would have not provided adequate visibility to the additional option, upon payment after a period of gratuity, which allows to obtain the maximum speed advertised. The fine of over 4 million Euros is the result, among others, of the balancing between the aggravating factor of Fastweb’s recidivism and the mitigation due to the partial amendment, by Fastweb, of the information on its own offers.


LGV AVVOCATI WINS IN THE MATTER OF JURISDICTION

28/03/2018

In a recent decision, the Court of Bergamo recognized the lack of jurisdiction of the Italian judicial authorities in a negative assessment procedure for receivables established against a Dutch company that is a client of LGV.

 

The present proceeding was initiated, with an appeal pursuant to article 702-bis of the Italian Code of Civil Procedure, by an Italian company – manufacturer of motorcycle helmet – against its Dutch distributor, assisted by LGV, in order to request verification of the non-existence of the right claimed by the latter in relation to the recognition of a bonus on turnover in 2016.

LGV appeared before the Court contesting, on a preliminary basis, the lack of jurisdiction of the Italian judge, on the basis of the provisions of EU Regulation 1215/2012; in particular, in particular, it maintained that the Dutch Court had jurisdiction both under Article 5 of the abovementioned Regulation, in relation to the connecting factor for the general forum of the defendant, and both in application of Article 7 on optional forums in the case of the sale of movable property.

The Court of Bergamo, in a decision issued only 5 months after the start of the proceedings, upheld the preliminary requests of the defendant, declaring that the Italian judicial authority lacked jurisdiction and ordered the applicant to pay the costs of the proceedings. In particular, the Court clarified that, in application of Article 4 of Regulation (EU) No 1215/12, “(…) in cases of international disputes, jurisdiction lies with the courts of the place where the defendant is domiciled or, in the case of companies, the place of domicile” and that, pursuant to  Article 7 of the aforementioned Regulation, in the case of contracts for the sale of movable property, jurisdiction lies with the court of the place, situated in a Member State, where the goods were delivered or should have been delivered under the contract. In the present case, the defendant is based in the Netherlands and the applicant’s assets were delivered to the Netherlands; the judge, therefore, concluded that the Italian judge lacked jurisdiction.