Dreyfus

Following the French Digital Republic Law of October 7, 2016, Dreyfus presents a trilogy of articles on three essential features of the law.

The Digital Republic Law is centered around its’ title II called “Protection of rights in the society”. Within this Title II is the Second Chapter,  entirely dedicated to “Protection of personal privacy online”, including “Protection of personal data”.

The specific feature of the chapter

This chapter is particularly relevant in that it ensures a smooth transition to the new Regulation (EU) No. 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and the free movement of such data (“GDPR”). Although the GDPR entered into force on April 27, 2016, its provisions will apply only as of May 25, 2018 in order to give companies enough time to comply with the new rules.

These new rules entail profound changes that the French legislator wished to anticipate in order to guide and the stakeholders and ensure compliance when processing personal data.

Power given to the data subjects

Both the Digital Republic Law and the GDPR focus on the person whose personal data will be processed (hereinafter called the “data subject”).

Article 4 of the GDPR defines personal data as “any information relating to an identified or identifiable natural person”. However, an identifiable person refers to “one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to his or her physical, physiological, genetic, mental, economic, cultural or social identity”. Therefore, data is personal when it allows the identification of a natural person. This data does not have to identify the data subject directly, as it shall be sufficient to identify them with data roll-up.

However, concerning personal data, the Digital Republic Law amended Article 1 of Act No. 78-17 of January 6, 1978 on Information Technology, Data Files and Civil Liberties by adding a second very important paragraph: “Any person has the right to decide and to control the use of his or her personal data, pursuant to the conditions set out in this law.”

A self-determination right is thus conferred on the data subject.

Control of Post-mortem data

The Digital Republic Law also incorporates the right for data subjects to control their post-mortem data by amending the Act of January 6, 1798, and Article 40-1, with the aim to empower them to exercise their right over their personal data. The law thus creates a system of directives on storage, deletion and communication of the data subject’s personal data.

These directives may be amended or revoked at any time by the data subject. The directives define the manner in which the person intends to exercise his various rights following his or her death.

There are two types of directives:

• General directives: they concern all personal data relating to the data subject. They may be registered with a trusted third party certified by the National Commission on Informatics and Liberty (CNIL). The CNIL will be responsible for managing a single registry where the references to the general directives and the registered and trusted third party will be recorded.
• Specific directives: they concern the processing of personal data mentioned in these directives. They shall be registered with the relevant data controllers and shall be subject to specific consent of the data subject. Thus, the mere approval of the general terms and conditions of use (GTC) does not allow the definition of these specific directives.

The directives may designate a person who, upon the death of the data holder concerned, will be responsible for executing directives and requesting their implementation from the data controllers. In the absence of the designated person and unless otherwise instructed, the heirs of the deceased shall take note of the instructions and request their execution.

Providers of a public online communication service are responsible for informing users about what is done with their personal data upon their death and must allow  them to choose whether or not to communicate their data to a third party they designate. Additional information on this issue should be included in the GTC specifically, but also in the data protection policy.

The rights granted to a person to decide what should be done with their post mortem data cannot be limited. Thus, a clause in the GTCs regarding the processing of personal data limiting these prerogatives is considered null and void.

Strengthening information available to users

Article 32 of the French Data Protection Law already required certain informations to be communicated to data subjects by whose data is being processed. Thus, the data collection forms had to mention the identity of the data controller, the purpose of the data processing, the mandatory or optional character of the data, the recipients of the data, and so on. The Digital Republic Law includes an eighth point on the storage period in terms of the categories of data processed or, if not possible, the criteria used to determine this duration.

Thus, any data collection form, data protection policy and any general terms and conditions of use shall henceforth indicate the data storage period.

Expansion of the CNIL’s powers

The main point addressed by the French Digital Republic Law is perhaps the expansion of the CNIL’s powers, specifically thanks to the amendment of Article 45 of the Act dated January 6, 1978 with respect to sanctions that can be imposed by the CNIL.

Henceforth, when a data controller fails to comply with his obligations, the CNIL’s chair shall be entitled to issue a formal notice to put an end to any identified infringement within a time limit set by him. In case of extreme emergency, this delay may be reduced to twenty-four hours. Previously, the timeframe was five days. If infringement does not cease, the CNIL Restricted Committee may then issue, following an adversarial hearing (procédure contradictoire), a warning, a penalty (except where the processing is made by the State), an injunction to cease the processing or a withdrawal of the authorisation issued pursuant to Article 25 of the Law of January 6, 1978.

Monetary penalties are a novelty because prior to the French Digital Republic Law, monetary penalties were set only in cases of violation of a formal notice. This penalty may not exceed three million euros.

 Article 83 of the RGPD provides for penalties, proportional to the breaches :

 – up to EUR 10,000,000 or, in the case of a company, up to 2% of the total annual worldwide turnover for the previous financial year, whichever is the greater;

– or up to EUR 20 000 000 or, in the case of a company, up to 4% of the total annual worldwide turnover for the previous financial year, whichever is the greater.

Since the European regulation is of direct application, these amounts should be applied by the CNIL as of May 25, 2018.

Such measures may also be taken by the Restricted Committee, without prior formal notice and following an adversarial hearing (procédure contradictoire), where the identified infringement cannot be brought into conformity in the context of a formal notice.

Where there has been a violation of rights and freedoms of the data subject following execution of the processed data, the Restricted Committee may also, when the matter is brought before it by the chairman of the CNIL andin the context of emergency proceedings defined by a decree of the Conseil d’Etat and following an adversarial hearing (procédure contradictoire):

– decide to suspend processing, for a maximum period of three months,

– issue a warning,

– decide to lock certain processed personal data, for a maximum period of three months,

– or, for certain processing, inform the Prime Minister so that he may take action toward putting an end to the infringement identified.

In the event of a serious and immediate violation of human rights and freedom of the data subject,  the CNIL chair may request a court of law to order, by way of summary proceedings, any measure necessary to safeguard these rights and freedoms.

The Restricted Committee should take into account :

• the intentional or negligent nature of the breach,
• measures taken by the data controller to mitigate the damage suffered by the data subjects,
• the level of cooperation with the CNIL in order to remedy the breach and to mitigate its possible negative effects,
• categories of personal data,
• and finally the way in which the breach was communicated to the Committee.

The Restricted Committee may make public the sanctions issued. It may also order sanctioned parties to inform the data subjects of this sanction individually, at their expense.

The Restricted Committee may also order the publication of sanctions in  newspapers and other media, at the sanctioned person’s expense.

Certain developments and clarifications on this law will be specified in the decrees. To be continued…

Please see our two other articles on the Digital Republic Law:

• Part 1: French Digital Republic Law – online platforms
• Part 2: French Digital Republic Law – data recovery

Further to the French Digital Republic Law on October 7, 2016, Dreyfus presents a trilogy of articles on three major aspects of law.

As soon as the online consultation on the Digital Republic Law came into force in  September 2015, the right to data portability was at the heart of debates. The participants displayed a keen interest and votes in favour of article were positive (out of 796 votes, 704 were in favour of the article).

The provisions of the Digital Republic Law on the recovery and portability of data will not enter into force until May 2018, with the Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

The Act therefore inserted a new subsection 4 in Section 3 of Chapter IV of Book II of the French Consumers Code entitled “Data Recovery and Portability”. According to the new article L. 224-42-1 of the French Consumer Code, “The consumer has at all times a right of recovery of all his data.”

A right to data recovery in accordance with European Union law

So as not to be in conflict with its future provisions, the drafting and coming into force of the Digital Republic Law followed the new European Regulation on the protection of personal data

The new Article L. 224-4-2 provides that the recovery of personal data introduced by the Law for a digital Republic is in conformity with the provisions of Article 20 of the Regulation of April 27, 2016.

However, there is a difference between the Digital Republic Law and the Regulation: while the latter speaks of data portability, the Digital Republic Law only mentions data recovery, regardless of what the title of the new subdivision 4 implies.

Difference between data portability and data recovery

As the name suggests, recovery allows for the retrieval of one’s data from an online provider of communication services to the public, in an open and easily reusable way. Thus, the data possessed by this provider shall not be lost when unsubscribing from its services.

Portability, however, not only makes it possible to retrieve data from the provider but also to transfer data to another. This can be initiated by the owner of the files himself, or if technically feasible, directly between the operators. Its scope is therefore larger than mere data retrieval.

The difference between data portability in the Regulation and data recovery in the Act is that the former covers only personal data and not “all files uploaded by the consumer”, contrary to the Digital Republic Law. The aim is therefore to target data processors in the Regulation and  to target online providers of communication services to the public through the Law..

The choice between portability and recovery therefore becomes clearer: personal data is sensitive data and it is normal for a person to make use of this information. “All the files uploaded by the consumer” however, makes the question to be asked a little more complex. It is understandable that the legislator did not wish to impose portability on the providers: this would have required considerable technical efforts and very high costs in terms of compliance. Nothing however, prevents the user from subsequently transmitting files to another provider, even if technically possible.

What data is involved in the recovery according to the Digital Republic Law?

The legislator sought to go further than personal data under the Regulation. The aim of these provisions is indeed to facilitate the access of new providers, in particular young innovative startups, to markets very often closed or at the very least dominated by oligopolies. The choice was made to lower the barriers to changes of service providers and to promote competition among different digital service providers. Thus, the choice was made to include, for example, online bank statements, order history on an electronic sales site or the content of music preferences progressively posted on an online streaming site.

The Act therefore provides that recovery must be a free-of-charge service for all providers of online communication services to the public. It therefore covers

• “all the files uploaded by the consumer”;
• “all the data resulting from the use of the user account of the consumer and viewable online by him, other than those that were subject to significant enhancements by the provider”;
• And “other data related to the consumer’s user account that meets the following requirements: a) these data enables the change of service provider or allows access to other services; b) data identification takes into account the economic importance of services involved, the intense competition between providers, the usefulness to the consumer, the frequency and the financial issues in the use of those services.”

 The data involved in the recovery is therefore significant and the criteria provided by the law allows for a wide scope of retrievable data. It includes files uploaded by the consumer, data available online on the consumer’s user-account, other data associated with the account as well as  that of economic importance, useful for the consumer, that bear financial issues, etc.

However, there is one significant exception: data “that were subject to significant enhancements by the provider” are not in the scope of the recovery. This involves making a distinction between raw data and significantly enriched data. The latter are those that concern services offered by the platform; data transmitted by the consumer that have been modified, enhanced using algorithms created by the service provider. The contribution of this algorithm cannot therefore be retrieved by the consumer while recovering the data.

Furthermore, it is only information visible to the public and not that of the “back office” that is concerned.

What are the new obligations on online communication service providers?

They must set up this data recovery feature and offer it free of charge.

The service provider must take all necessary measures, in terms of interface programming and transmission of the information necessary for the change of provider. The consumer must be able to retrieve all of his/her data or files through a single request made to the provider.

The data must be recovered using an open standard, easily reusable and exploitable by an automated processing system. However, when this is impossible, the provider must clearly and transparently inform the consumer. Otherwise, where appropriate, the provider informs the consumer of the alternative methods of such data recovery and specifies the technical characteristics of the recovery file format, in particular its open and interoperable character.

A decree is expected to specify the list of the types of enrichments deemed to be insignificant that can not give rise to a recovery refusal to the consumer. In case of a dispute, the burden of proving the alleged insignificant enrichment will be that of the  professional.

To this extent, the new Article L. 224-42-4 of the French Consumer Code specifies that these provisions do not apply to providers of an online public communication service with a number of user accounts subject to an active connectionion during the last six months less than a threshold number defined by decree.

What do these new provisions bring about?

The ability to retrieve data from an online communication service was highly anticipated by Internet users. For some, this is even the corollary of the recognition of the right to the free disposal of personal data.

The challenge here was to balance the needs of consumers with business economic needs. The aim was not to disadvantage young innovative companies struggling to find a place among the giants within the markets concerned .

Time will tell us whether this objective is achieved and the impact of these provisions. We will have to wait until May 25, 2018 to notice the first visible effects, when the European Regulation and these provisions on data portability and recovery will come into force.

Part 1 – A law for digital French Republic – online platforms

Part 3 – French Digital Republic Law – right to privacy

Following the French Digital Republic Law of October 7, 2016, Dreyfus presents a trilogy of articles on three essential features of this particular law.

The French Consumer Code introduced new provisions regarding online platforms by the Digital Republic Law. The platforms are new to appear in the current legislation, like internet service providers or online brokers, defined in Article L. 117-7 of the French Consumer Code.

The definition of digital platforms

The new Article L. 111-7 of the French Consumer Code provides a definition for online platform provider: “any natural or legal person offering, on a professional basis, including for free, an online communication service to the public that is based on:

1) ranking or referencing contents, goods or services offered or uploaded by third parties by using computerised  algorithms;

2) allowing several parties to get in contact with one another for the sale of goods, the provision of services or the exchange or sharing of content, goods or services.”

The above definition covers all platforms, whether they are those which provide a platform for transactions between a business and a consumer (B to C), between consumers (C to C), price-comparison websites or online marketplaces.

However, whilst all these platforms have a common obligation, some have additional obligations and responsibilities, according to their status.

Digital platforms – the obligation to provide information

According to Article L. 111-7 II, all online platform providers have the obligation to provide consumers with loyal, clear and transparent information. It is a direct obligation of which the scope is defined by the Article; this obligation should take into consideration:

• the general terms of use of the service proposed by the provider;
• the methods used to reference, rank and remove the contents, goods or services available on the platform;
• the existence of a contractual or financial relationship or remuneration in case the provider influences the ranking or referencing of the contents, goods or services available on the platform;
• the capacity of the advertiser and the rights and obligations of each party in civil and taxation matters when consumers are put in touch with professionals or non-professionals.

When allowing professionals, sellers or service providers to be in contact with consumers, the provider must also provide them with a forum to communicate information to consumers in accordance with Articles L. 221-5 and L. 221-6 of the French Consumer Code. The forum will enable sellers to communicate to consumers any mandatory pre-contractual information in compliance with the obligation imposed on sellers and distance service providers including their right to withdraw and its procedures.

The new Article L.117-7 also defines the rules specific to online price comparison platforms and the features of goods and services provided by professionals. These providers may thus provide to consumers certain information based on comparative data and that of advertising, within the meaning of Article 20 of the French Law no. 2004-575 of June 21, 2004 for confidence in digital economy.

Finally, Article L. 111-7-7, introduced by the French Digital Republic Law, requires online platform providers whose activity generates connections above a certain threshold to be defined by decree, to establish and to make available to consumers good practices guidelines aimed at strengthening the obligations of clarity, transparency and fairness. Let us hope that the upcoming decree will define these good practices further.

Surveillance by the DGCCRF

The DGCCRF (the French General Directorate for Competition Policy, Consumer Affairs and Fraud Control) is established in particular by the Treaty on European Union and its protocols, by the French Consumer Code and several other codes to carry out investigations to ensure the competitive regulation of markets, economic protection and consumer safety. Thus, Article L. 511-6 of the French Consumer Code mentioned under Article L. 111-7-1 of the same Code, provides that this administrative authority is empowered to investigate, assess and compare the business practices of online platform providers. “For these purposes, it may collect from these providers the information required for fulfilling this duty. It will publish periodically the results of these evaluations and comparisons and will make public the list of online platforms that do not comply with their obligations under Article L. 111-7.”

All the obligations and information covered by Articles L. 111-7 and L. 111-7-1 will be specified in the implementing decrees.

The specific obligation to regulate online reviews

This specific obligation is defined by Article L. 111-7-2 of the French Consumer Code and applies to “any natural or legal person whose primary or secondary activity consists in the collection, moderation or broadcasting of online notices from consumers”. Thus, the obligation to provide loyal, clear and transparent information relates here to the procedures with respect to publishing and processing these online reviews.  Several details must be given by the provider:

• Are reviews moderated? If this is the case, what are the main characteristics?
• The dates of publication and any updates must be displayed;
• Where a review has not been published, the reasons justifying the rejection must be published;

The provider must also introduce a free feature allowing the persons responsible for the provision of goods and services to report any suspicion on the authenticity of the review which targets them. This alert must be justified.

This article shall be without prejudice to obligations already set at Articles L. 11-7 and L. 111-7-1 of the French Consumer Code as well as obligations under Article 19 of the Law No. 2004-575 of June 21, 2004 regarding Confidence in the Digital Economy.

Once again, a decree will be issued following consultation with the French National Commission for Informatics and Freedoms, for the purposes of setting out the terms and conditions and contents of this information.

What changes do these new provisions bring about?

Online platforms have an economic dimension: they are increasingly becoming a catalyst for innovation, and stimulating social interactions and their functions are known and used by many. Their contribution to the development of the digital market, the economy and society is therefore undeniable.

However, given their increasing importance, it was clear that some rules needed to be established. Their role goes beyond that of a publisher or a web-host provider (Article 6 I. 2 of the Law regarding Confidence in the Digital Economy of June 21, 2004).  The issue is not about offering contents to Internet users or about storing these contents, but about offering communication services to the public consisting of ranking or intermediary services between two people having a common purpose (often to exchange, sell, goods or services).

The importance of the Digital Republic Law lies in the fact that it not only defines the role of online platforms but it also imposes an obligation of loyalty, aiming first of all to protect the Internet user by providing the information that he requires. The purpose is therefore to restore the balance between these strong platforms and the Internet users, who often have little knowledge of their rights and potential dangers of the tools available to them.

As decrees are expected to bring clarifications, these provisions are welcome and respond to the quest for protection and loyalty to ensure a good relationship between various economic agents of the Internet.

This law thus introduces several developments and most of them will need to be specified by a decree.

Please see our two other articles on the French Digital Republic Law:

• Part 2: French Digital Republic Law – data recovery
• Part 3: French Digital Republic Law – right to privacy

Since 2015, the trademark system in the Middle East has undergone substantial reform. Trademark fees in The United Arab Emirates, Kuwait, Syria and Bahrain have increased significantly.

This rise in prices is worrying for professionals in the Middle East, who forecast a decrease in the number of trademark filings by foreign companies.

A significant rise in prices

The initial changes appeared in the United Arab Emirates in July 2015. Six months later, Kuwait made a similar move, except that the rise in price is even more significant. More recently, Bahrain and Syria increased their prices for the formalities required to complete the registration of a trademark.

In addition to the prices, one should also consider a special feature of these Middle-Eastearn countries: a trademark application is only possible for one class of goods or services. Thus, if a trademark covers several classes, a separate trademark application has to be filed for each class and each trademark filing must be paid for.

Furthermore, the procedure for filing an international trademark is complex in the Middle East. Applications usually have to be accompanied by several supporting documents such as a power of attorney or documents in support of a priority trademark claim. The strict submission timelines must also be adhered to in order to avoid the application for trademark registration being refused. Finally, accompanying documents will usually require notarisation or legalisation. The formalities can take several weeks to process.

Why such an increase?

The Gulf states are now amongst the countries with the highest trademark filing fees. Trademark fees had not increased for the past ten years. No official reason has been issued to justify this change. However, developing countries need to improve their domestic services. Thus the new fees could be attributed to the fact that these services have been digitised, making it possible to make online applications and to grant access to all to specialised databases.

Another reason could be the coming into effect of a regional trademark law in the Gulf Cooperation Council States. Published in 2006 and revised in 2013, it is still  to be reviewed and should be enacted in 2016. The new law would give way to unifying laws in Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. It does not provide for a single registration (to get the “GCC mark”, registering a trademark in all six GCC states will still require filing six separate national trademark applications). However, there may be opportunities to file multi-class applications, which would compensate for the rise in prices in these countries. The Law would thus help modernise and improve the trademark registration and protection system in GCC states.

Still, these increases could result in far-reaching consequences for corporations as well as for local industrial property firms holding trademarks, who might witness a decline in their revenue if trademark holders no longer file trademark applications, especially in these countries.

However, there is one option left for international trademark holders to avoid payment of the new fees. In Bahrain, Oman and Syria, one can opt for the Madrid System which allows for the filing of one application, in one language by paying one set of fees for the 97 member states. Unfortunately, this is not possible for the other countries mentioned because while they are parties to the WIPO Convention, they are not parties to the Madrid System.

A company must strategically manage its trademark portfolio. Dreyfus & associés aims to assist you by selecting the best approach to enhance and protect your rights.

Compliance of Zambian law with the Paris Convention, the TRIPS Agreement and the Harare Protocol.

On June 6, 2016, a new design law was introduced to Zambian intellectual property law , thus repealing the Registered Design Law of 1958.

The major contribution of this law resides in the possibility to enjoy protection afforded by design law once the said design has been registered. Under the Law of 1958 , the registration of a design only gives the registered proprietor the copyright (Article 14 of Registered Designs Law of 1958).

The notable features of the law of 2016 are as follows:

Amendments to the criteria for protection

The law now provides for the principle of “absolute novelty”, thereby modifying the criterion of novelty.

In addition to the traditional criterion of novelty, the 2016 law introduces the requirement of the design’s individual character into Zambian law.

The individual nature of a design will be recognised where “the overall impression it produces on an informed user differs from the overall impression produced on an informed user by any earlier design differs from the overall impression produced on such a user by any earlier design, which has been made available to the public before the release date of such a design” (Article 18 of the Industrial Designs Act of 2016).

Introduction of an opposition period

It is now possible for a third party, including the State, to oppose the registration of a design within a period of two months from the date an application is published (Article 43).

Duration of protection

The duration of the protection of a design has been modified. It is no longer possible to renew the registration of a design for more than two consecutive periods of 5 years, but only for one, thus bringing the total duration of the protection of a design to 10 years rather than the initial period of 15 years.

Licences

Licencing contracts must be registered with the Registrar. The Registrar can refuse the registration of a licence if it imposes unjustified restrictions on the licensee. Furthermore, the licence contract shall not have effect against third parties until it is registered and a certificate of registration is issued in respect thereof (Article 78).

Creation of designs by employees

A whole section devoted to designs by employees has been introduced by the new law.

In principle, the designs created by employees during the course of their employment contract belong to the employer. However, where the design acquires an economic value much greater than that the parties could reasonably have foreseen at the time of concluding the contract, the employee shall be entitled to an equitable remuneration to be agreed upon by the parties or in default, to be determined by the court (Article 45).

Guatemala’s accession to the “multi-class” trademark application system 

In addition to being the most populous country, Guatemala is also the the largest economic power in Central America.

Since the conclusion of an Association agreement between Guatemala and the European Union in 2013 , intellectual property law has become a major point of discussion for the country.

Indeed, the agreement has led to a number of reforms, particularly in relation to intellectual property law. New types of trademarks such as holograms, olfactory and sound marks have emerged in Guatemala. In addition, the creation of an online newsletter published on the website of the Registry for Intellectual Property now allows individuals to view the trademarks which are registered in Guatemala online.

The year 2016 therefore marks a further step in the development of Guatemala’s intellectual property law.

On March 31^st, the Government of the Republic of Guatemala issued Decree No. 20-2016 concerning the country’s accession to the Trademark Law Treaty (TLT) signed in Geneva on October 27, 1994.

The Trademark Law Treaty is expected to enter into force on December 12, 2016.

The accession of Guatemala to the TLT results in the harmonization and simplification of the procedures for the registration and renewal of trademarks in Guatemala (except for holograms, sound, olfactory and collective trademarks).

Simplifying trademark registration applications 

It will be simpler in the future for a foreign trademark holder to register a trademark in Guatemala given that the same power  can now be applied to one or more applications or to one or more trademark registrations.

The adoption of “multi-class” trademark applications 

Another important development is the introduction of “multi-class” trademark applications in the intellectual property law of Guatemala. 

According to Article 6 of the TLT, a single trademark registration may designate goods and services belonging to several classes.

This system has many advantages, including a simplified management of trademark applications and the reduction of examination time for trademark applications. It also facilitates the monitoring of trademark renewal procédures.

Dreyfus & associés can assist you with your applications for Guatemala trademark registration by selecting the best strategy for promoting and protecting your rights.

Created in 2011, Snapchat is a fast growing social media platform which now counts more than 150 million daily active users  across the world while Instagram, founded in 2010, has more than 300 million users.  These applications can prove to be effective marketing tools for businesses.

Snapchat: the perfect outlet for users’ spontaneity

There are many advantages to companies having a Snapchat account. Firstly, Snapchat reaches the younger audiences. In fact, 71% of Snapchat users are under the age of 25. Snapchat is widespread amongst teenagers and young adults because of its spontaneous and quirky characteristics. The originality of the application lies in the limited lifespan of its content which is between a few seconds and up to 24 hours.

Given the entertaining nature of the application, Snapchat can also be beneficial for the corporate image of a company. If the company builds on this and posts engaging content, it will promote its a friendly image and will show its willingness to engage with clients via different and innovation communication tools. The speed and ease of publication on the application are just some of its defining characteristics. For example, a company will be able to film its interior premises and reveal the work environment of its employees, thus opening up to its community of followers, by allowing them to relate to the company on what some might consider a deeper level, with the ultimate goal of enhancing and strengthening customer relations.

The ephemeral aspect of the application prevents users from posting negative comments on business accounts. Thus, there is very little risk of damage to a company’s corporate image.

Instagram, a popular social network now offering dedicated business accounts

Instagram is another social media network that has become a ‘must’ for a company’s corporate image. Instagram is an effective communication tool for introducing a trademark and associated products to internet users. Moreover, 46% of active users follow trademarks. For example, Louis Vuitton, the French luxury brand for luxury leather goods has 13.4 million Instagram followers.

Hence, through this network, a business can improve its ranking by making content it posts more visible and by targeting an audience more likely to be interested in its publications. By increasing its number of followers and reactions to its content, the business will gain more visibility on Instagram since this social network works by following an algorithm which puts forward the publications which have the most likes and comments. Instagram had announced on March 15, 2016 that “the order of photos and videos in the feed will be based on the likelihood that the internet users will be interested in the content, their relationship with the person posting and the timeliness of the photo or video”.

Like Snapchat, communicating with internet users via Instagram allows a company to be closer to its clients. By taking advantage of this innovative aspect of social media, brands can enhance their image, which helps to develop the interest of internet users for the trademark and associated products and/or services.

Furthermore, since May 2016, it is possible to create “professional accounts” on Instagram. Creating these types of accounts is free of charge as they are designed for companies to be able to have access to similar features already available for example, on Facebook company pages. Companies can display not only their contact information (telephone number, address, email address etc.) but also have access to statistics and can therefore obtain detailed information on the success rates of their publications.

Visual communication plays a leading role in today’s world. Snapchat and Instagram are bold and effective choices for businesses and their corporate image.

A success which can prove to be dangerous for company trademark rights

Success gives rise to imitation. Snapchat and Instagram are popular social media networks with hundreds of millions of registered users. However, like any other successful social media network, these networks are not safe from attacks on trademarks. Therefore, cybersquatters, already present in large numbers to attack trademark laws via domain names, attack these new social networks.

Companies thus need to adopt an appropriate strategy to protect themselves from such attacks and to defend themselves against internet scammers. Dreyfus specializes in the protection of online intellectual property rights and can assist you in your undertakings related to the protection and defence of your rights on social media networks.

Dreyfus may initially study the possibility of recovering usernames reserved by third parties. Indeed, these attacks on your rights should not be tolerated. However, if the names matching your trademarks are available, Dreyfus can reserve them. There are currently only a few judicial decisions relating to Snapchat and Instagram but lawsuits can be complex and expensive. It is therefore recommended that companies adopt preventive action before any of your rights are infringed.

Do not hesitate to enquire further about our wide range of services aimed specifically at protecting your IP rights on the Internet.

As content sharing on the Internet has become common practice for individuals as well as professionals (Facebook, Twitter, Pinterest, LinkedIn), the Court of Justice of the European Union gradually develops relevant jurisprudence on the matter of hypertext links.

When a hyperlink to copyright-protected content is made available online by the owner of the copyright (or with his/her authorization), it does not constitute an act of “public communication” as it does not address a “new public”.

What if the online content has been published without the authorization of the rights holder?

The Advocate General of the ECJ delivered his Opinion on this issue to the ECJ in the GS Media case C-160/15. The dispute is between Sanoma, editor of Playboy magazine, and GS Media, operator of the website GeenStijl.

GS Media published a hyperlink on the GeenStijl website directing viewers to an Australian site where Sanoma’s photos were published without its consent. Despite demands from Sanoma, GS Media refused to remove the hyperlink in question. When the Australian website removed the photos upon Sanoma’s request, GS Media published a new hyperlink to another website on which the same photos could be seen, published again without the consent of Sanoma. That site also complied with Sanoma’s request to remove the photos. Users of the GeenStijl forum posted new links to other websites where the photos could be viewed. Sanoma then sued GS media for copyright infringement.

The case escalated all the way to the Hoge Raad der Nederlanden, the Supreme Court of the Netherlands, which considered that it could not infer from the current ECJ case law that there was “communication to the public” when content is made freely available online without the authorization of the copyright owner. The European Court of Justice has therefore been asked to give a preliminary ruling.

Isn’t there a risk of “communication to the public” when placing a hyperlink to protected content without the authorization of the copyright owner?

The Advocate general of the ECJ, Melchior Wathelet, published his Opinion on April 7, 2016. The Opinion of the Advocate General is not binding on the Court of Justice but intends to propose a legal solution to the Court. According to the Advocate General, once the protected content is freely accessible on the Internet, hyperlinks placed on a website cannot be classified as an act of communication within the meaning of the Directive 2001 on the harmonization of certain aspects of copyright and related rights in the information society. Whilst the photos were possible to find, this was not necessarily easy. The photos were “freely accessible” on third-party sites. Initial “communication to the public” had already taken place and as a result, the hyperlinks only allow users a faster and more direct access to the content. The hypertext link thus only facilitates the discovery of websites where those photos are already published.

The actual act of “public communication” is made by the person who effected the initial communication. The hypertext link only leads to a website where the photos are already published without the authorization of the copyright holder. Consequently, hyperlinks cannot be classified as “acts of communication”. The intervention of the owner of the site who inserts the link is not indispensable for the photos in question to be made available to Internet users. In this case, GS Media’s intervention was merely to reiterate the content already online and is not indispensable to the provision of these photos being made available on the Internet. Moreover, the Advocate General considers that GS Media’s intentions and the fact that it knew or should have known that the initial communication of the photos had not been authorized by Sanoma are not relevant. Thus, the posting of a hyperlink to a website which published photos without authorization does not in itself constitute a copyright infringement.

An approach in line with the European case law

The approach of the Advocate General is in line with the ECJ case-law that gradually develops its decisions on the legal status of hyperlinks. In the Svensson case, judgement of February 2014, the CJEU had ruled on the legal status of a hypertext link. The Court considers that a website can place a hyperlink to protected content freely accessible on another website, without the authorization of the copyright holder. The creation of an Internet link which redirects a user to a protected content authorized by the copyright holder does not constitute “communication to the public” since there is no “new public”. Indeed, the work has already been communicated to the public beforehand. The hyperlink only “directs” towards this work.

In an Order of the Court of October 2014 in the BestWater case, the CJEU adopted the same legal reasoning concerning the hyperlinks by using the framing method. The CJEU held therefore that there was no “communication to the public” if the content concerned is neither directed at a new public nor communicated by using specific technical means different from that used for initial communication.

Please read our article “European Union: the legality of a YouTube video integrated into a third party site (Framing)”.

A surprising French amendment to ban hyperlinks

In France, an amendment to the bill for a digital Republic was filed by two MPs who would like to see a large number of hypertext links to disappear. The amendment is not in line however with the Svensson case which established the principle that clickable links to copyrighted works do not need authorization from the owner. As for the amendment, it intends to ensure that all hyperlinks are subject to authorization prior to publishing protected content.

Hyperlinks: central to the functioning of the Internet

As the Advocate General emphasized in his Opinion, interpreting this matter in the wrong way would entail far-reaching consequences in terms of the responsibilities of Internet stakeholders. It is important to strike a balance between disseminating information and enforcing copyright law. Any other interpretation of the notion of “communication to the public” would infringe one of the principal objectives of the Directive, namely the development of a European information society.

Furthermore, the Advocate-General notes that the above, would considerably impede the functioning of the Internet. Users visit sites and create hyperlinks to access such content. Internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the Internet was done with or without the consent of the copyright holder. If Internet users risk liability for copyright infringement every time they place a hyperlink to content which is freely accessible on another website, they would be much more hesitant to post these links.

Until then, don’t be concerned, the trend is pushing towards the unrestricted use of hyperlinks!

As of  October 1^st, 2016, ICANN (The Internet Corporation for Assigned Names and Numbers) is no longer linked to the U.S. Government.

ICANN’s role

ICANN manages the global resources of the Internet, that is to say it handles the management and coordination of Internet addresses such as IP address allocation, DNS and IP Protocols. Such functions are referred to as IANA: Internet Assigned Numbers Authority function. This particular function, managed by ICANN, was carefully guarded by the U.S. government since it is a critical function.

The emancipation of ICANN

Since October 1^st, 2016 ICANN is no longer under the control of the U.S. government and in particular, the U.S. Department of Commerce or the NTIA (United States Department of Commerce National Telecommunications and Information Administration).

The U.S. was committed to preserving the IANA function since the creation of ICANN in 1998. When the internet was handed over to the private sector, the U.S. government was awarded a contract placing the federal courts as the final arbiter of disputes. The U.S. thus had the final say on every ICANN decision and could block decisions perceived as contrary to its interests.

While this emancipation was a long-term stated objective since ICANN’s inception in 1998, the project materialised only after the revelations of Edward Snowden in summer 2013 and the surveillance scandal involving the NSA. Weakened with respect to global diplomacy, the U.S. had to give in to pressure from over 150 countries including China, Russia and France along with the Afnic association (Association Française pour le Nommage Internet en Coopération, historic operator of .fr). It was not only the U.S. who had control over the internet however: Chinese companies like Alibaba, Tencent or even Baidu hold the same value as GAFA(Google, Apple, Facebook and Amazon).

ICANN’s independence project, aiming for 2016, was announced at ICANN’s 55th International Public Meeting in Marrakech in March 2016.

After two years of hard work and significant obstruction from US Republican Senators, negotiations finally resulted in a new arrangement, welcomed by numerous industries, prominent figures, governments, organisations.

What does this mean for the Internet and its users?

Prior to the expiration of the contract, ICANN was under the control of the U.S. Department of Commerce which had the power to force ICANN into bankruptcy. But the U.S. control over the Board of Directors has now been eliminated.

Henceforth, all Internet stakeholders will have a say and can participate in decisions. A general assembly alongside counter powers was thus created.   This general assembly is made up of four groups:

 –      the private sector, involving stakeholders like GAFA, large companies and SMEs;

–       the technical community;

–       governments, composed of 160 members with one vote each;

–       the civil society: consumer protection associations, civil rights associations.

If there is a consensus, this assembly may block a decision of the Board.

 Americans are not excluded from any decision of ICANN. They form part of the general assembly, have a voice and can oppose any decision of the board. But with time and changing power relations, they could lose their influence.

ICANN’s main concern will therefore be to implement this new multi stakeholder model. The organisation must introduce changes in its culture so that it duly takes into account differences in culture, age, gender, language, career paths. Each community should be able to voice their concerns fully and be capable of influencing the organisation.

On its website, ICANN was pleased to announce this “historical moment”.

Needless to say that we will obtain more information during the next ICANN Congress, the 57^th, to be held in India in early November 2016.  Dreyfus will keep you updated about developments related to ICANN and internet governance.

A new law will be passed soon in the Cayman Islands making it mandatory to file a trademark registration application with the Cayman Islands Intellectual Property Office (CIIPO).

A significant change in the trademark law of the Cayman Islands

Previously, under The Patents and Trade Marks Law 2011, it was possible to gain trade mark protection in the Cayman Islands by way of an application for a UK or Community trade mark registration. With only a registration number, extension of that trademark protection could be requested in the Cayman Islands. The CIIPO would then conduct only a minimal examination of the trademark.

Furthermore, since the Cayman Islands is not a signatory of the Paris Convention, priority could not be claimed and trademark protection would be effective as of the registration date. The International Classification system was used and multi-class applications were allowed to the extent that these classes were requested for the registration of a UK or European Community trademark.   Previsouly, the law also required the payment of maintenance fees payable to the Government of the Cayman Islands in January of each year. These fees could be paid up until March 31^st of that year. Failure to pay annual fees would result in the suspension of protection of the trademark until payment was received. Beyond twelve months, the Registrar may cancel the record of the trademark.

What changes does the new law bring about?

As of now, the CIIPO will only accept national registration applications made directly to the Registrar.

In addition, the examination process will not be minimal, as applications will be examined on both absolute and relative grounds. There will also be a provision for opposition to the registration of the trademark.

The requirement to pay annual maintenance fees in order to maintain a valid trademark registration has however been retained.

Recommendations for registering your trademark

With the new law, which should enter into force during 2017, the timeframe to obtain a trademark registration will be extended.

We encourage you to register your trademarks directly with the Cayman Islands Registrar so as to prepare for the coming into force of the new law and for the potential issues that could arise. It is better to take prompt action in order to anticipate delays and the difficulties that the national Registrar will encounter in order to adapt to the new law.

Dreyfus & associés will certainly inform you of the developments in trademark law in the Cayman Islands. We remain available should you require any additional information.