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The French Data Protection Authority (CNIL) adopted a recommendation on January 23, which provides a frame of reference for the concept of a “digital safe” and for the implementation of a certification label in relation to these storage services.
The term “digital safe” is now defined by the CNIL as “secure data storage space, accessible online, allowing storage of electronic documents under various formats (texts, photos, scanned papers).” The emergence of this new storage system raises many issues, especially in terms of the integrity and confidentiality of personal data stored there.
The Commission, which specializes in the protection of personal data, has created this trust indicator in order to show the high level of protection of personal data provided by online data storage services when they implement appropriate measures.
In order to benefit from the label, two cumulative requirements have to be met by service providers: the provider must operate the online data storage service and offer services directly to the general public.
In its recommendation, the CNIL also provided a specific regime in relation to health data. Due to their sensitivity, the storage of such data requires prior certification of the provider by the CNIL.
This certification label is the first label made in relation to products, following the path of the pre-existing labels created by the CNIL in relation to training and audit practices.

From knock-off Louis Vuitton purses to imitation iPhones, the International Chamber of Commerce estimates that ten percent of world trade is in counterfeit goods and that the counterfeit market is worth $500 billion. With this number hitting just “the tip of the iceberg”, the World Customs Organization (WCO) has claimed counterfeit items reported worldwide hit 3 billion for the first time last year. Despite appealing to some consumers wanting to take advantage of a trademark or trademark’s social capital and reputation, counterfeited goods should be recognized as inherently criminal. Not only do these products come into existence on the global market through organized crime, thereby impacting negatively on businesses, more importantly, the social and ethical effects of these products are all too often overlooked.

Published within the WCO’s Illicit Trade Report, the “tremendous increase” of fake goods underlines this growing problem, which is evidenced in the fact that more countries are reporting IP-related infringements, a rise numerically represented from 58 to 69. The seizures of pharmaceutical products, clothing and accessories, electronic appliances and food items are most common with China remaining the biggest hotbed for the production of counterfeits and the US being the country they are most destined to hit.

The ten-day clamp in Africa called “Operation Biyela”, where 23 countries sought to perform one of the biggest hauls of counterfeit pharmaceuticals, resulted in the interception of more than one billion illicit products; nearly 50 percent of them being pharmaceuticals. The World Health Organization (WHO) developed this definition of counterfeit medicines:

А counterfeit medicine is one which is deliberately and fraudulently mislabeled with respect to identity and/or source. Counterfeiting can apply to both branded and generic products and counterfeit products may include products with the correct ingredients or with the wrong ingredients, without active ingredients, with insufficient active ingredients or with fake packaging.

Clearly, counterfeit medicines can post a serious health risk to consumers. What is even more frightening is that information derived from Operation Biyela reports findings of a variety of different types of counterfeit medicines including diet pills, anti-malaria tablets and antibiotics. The extensive range of these products, from lifestyle medicines to those which are used to treat cancer and heart disease should be concerning to consumers, yet the demand proves otherwise.

Ethical issues brought on by counterfeit products should also be brought be exposed, especially as they apply to labor exploitation and low paid workers facing safety and security concerns. On the other end of the spectrum, Rachel K. Ward, PhD, a media specialist in fashion art and luxury sectors appeals to Utilitarian terms to justify the abolishment of counterfeit goods. According to Ward, “the utilitarian argument is the most used in the fashion industry because it points to the fact that “intellectual property needs to be protected in order to provide sufficient incentive to develop new technology and creative products.” Similarly, Ward goes on to point out the low-quality of counterfeit goods and how easy counterfeit products can be to discern, counteracting the consumer original faith in the product.

Among trademarks, Nike, Apple, Samsung, Rolex and Louis Vuitton make up the top five to be common targets of counterfeiting. In fact, Louis Vuitton was engaged in extensive legal battles with Google over the promotion of counterfeit goods on the search engine.

In order to better understand and solve this global phenomenon, consumers must begin to educate themselves on the effects of their decisions to participate and fund a sphere of illicit trade. If you, or your business requires assistance and or advice when it comes to counterfeit goods, Dreyfus is available for consultation.

A revolution is bound to occur in the chain of e-commerce with the advent of new domain name extensions (new gTLDs). Generic extensions such as .search or .shop will have a lasting impact on the Internet. The .wine and .vin gTLDs are, of late, the subject of intense debate between the Internet community and European institutions.

None of the French and Europeans actors in the wines and spirits industry have filed any application for these extensions. Foreign companies, most of them from the US, have been the forerunners in applying for the management of these new gTLDs. Donuts Inc filed the sole application for the .vin gTLD while three companies have solicited the .wine gTLD. As a result, ICANN announced that an auction will be held in January 2015 for the .wine gTLD. While these gTLDs are primordial for the online trading of wine-related products, they nevertheless generate major problems.

The GAC, an advisory body of ICANN representing governments, issued a warning in respect of the .vin gTLD in 2012. European regulations establish a strict framework with regard to oenological practices and specifically for the “vin” designation. The GAC underscored that the registry should fully prohibit open registrations so that consumers are not misled.

Recently, there was an outcry within the European governments, and particularly from the French government concerning the protection of geographical indications such as Champagne or Bordeaux. Indeed, while registered marks are protected, the same does not hold true for geographical indications. Nothing would prevent anyone from registering the ‘champagne.vin’ domain name to market wines hailing from Alsace or Provence or even completely different products. In the end, the consumer would thus inevitably be duped. Moreover, none of the three applications affords any protection with regard to the geographical indications. The French Secretary of State in charge of digital affairs, Axelle Lemaire, has repeatedly reiterated the request of the French government to provide for a procedure similar to the UDRP in respect of geographical indications in these extensions.

At this point in time, a consensus is yet to be reached. In September 2013, the Chairman of the GAC conveyed a letter to the Board of ICANN recommending that the applications in respect of the .wine and .vin gTLDs undergo the usual evaluation process. This does not seem to account for the majority of the opinions expressed in GAC.

Indeed, the GAC statement issued in November 2013, after the ICANN meeting in Buenos Aires, clearly reveals such contradictions. Opponents of these gTLDs asked that the applications be halted until additional protection mechanisms are arranged. The proponents, on the other hand, deem that the existing safeguards are sufficient and that the prerogative of ICANN does not rest in the regulation of geographical indications.

Yet, the issue which arises is a live one, insofar as other industry-specific extensions such as .archi and .bio have established strict registration requirements so that consumers are not misled. But as applications are not amendable; in practice it would be almost impossible to amend the rules with regard to the .wine gTLD to accommodate the requests of everyone.

The French Government expressed its regrets at the fact that ICANN rejected the safeguards proposed by organizations for the protection of geographical indications. These were deemed necessary to ensure that producers of wine with the label of origin and consumers likewise are afforded the requisite protection against Internet abuse.

As the ICANN meeting was being held in London in June, no consensus has been reached. To be continued!

At the end of May 2014, the French data protection authority (CNIL) published an IP Report (Cahier IP) on the human body as a new connected object, focusing on personal health data resulting from “quantified self” apps and connected objects.

In its publication, the CNIL has defined this phenomenon of “quantified self. This somewhat confusing expression covers various practices which all tend to measure and compare with others the variables related to our lifestyle: nutrition, physical exercise, sleep and even mood, etc.”

The data automatically captured by the connected objects is then mass processed. The development of this practice calls for user attention vis-à-vis the future of their data. As such data relates to the health of individuals, it is sensitive in nature. There is no definition of “sensitive data” but they are listed extensively.

The Commission highlights the gap between professed privacy policies and actual practices. This often goes unnoticed due to the lack of attention and knowledge of users regarding personal data.

A “client empowerment” movement giving more power and control to the client would allow a rebalancing of the user/data collector relationship. As a matter of fact, the voice of the clients is often neglected by companies. This “empowerment” may also allow the commercialisation of the data with the client’s direct consent, which would be beneficial to data brokers.

Another solution for the protection of user data would be to impose the concept of “privacy by design” as soon as the connected object is conceived, although the CNIL makes no mention of this in its report. The aim is to make the protection of users’ privacy the primary characteristic of the object. Thus, by default, the collected data will not be extensively shared or re-sold.

As French and European laws are very protective of personal data, particularly sensitive data, one must remain vigilant when collecting such data.

Dreyfus will assist you in auditing your data and will help you to implement privacy policies compliant with French and European regulations.

At the close of April, Brazil hosted NetMundial, the global multi-stakeholder meeting on Internet governance, coinciding with the time when the World Wide Web was celebrating its 25th anniversary. Delegates from 87 countries, including civil society, government, international organization and technical community representatives, have agreed to sign a final declaration, in an élan to answer the question namely “how to govern the web?”

Historically, the web has been governed by the United States. But the Snowden case and the emergence of players such as China and Brazil regularly propel the polemic to the forefront. While the European Union recently demanded global oversight of ICANN and the National Telecommunications and Information Administration (NTIA) coveted to be relieved of some of the functions it assumes, NetMundial had to decide the delicate issue of governance.

The final statement provides guidelines and the establishment of a roadmap by virtue of which this non-binding document will materialize. It lays down inter alia a number of principles designed to foster a more democratic supervision of the Internet, based on a multi-stakeholder model to strive towards “a stable, decentralized, secure, interconnected network accessible to all.”

It is in this context that, on March 14 NITA imparted its wish to delegate some of its functions to a multi-stakeholder organization. The transition plan, widely debated at NetMundial, will be implemented in the upcoming months. However, U.S. Congress intends to veto the project and has introduced legislation prohibiting any transfer before a detailed report on the subject is rendered.

The final declaration adopted at NetMundial has been generally accepted, particularly by AFNIC which manages .fr domain names and saluted “the success of NetMundial, the transparency of the meetings and the constructive involvement of all stakeholders involved.” In regards to free internet activists, they continue to assert that the text offers “no concrete measures.”

The final declaration covers other important topics. Matters which were extensively explored included reduction of the digital divide, protection against illegal or arbitrary data collection or the fact that the rights of individuals who are off-line should also be protected online. The concept of net neutrality was flagrantly excluded from the final declaration despite having been advocated by many civil society stakeholders. “It may not be perfect, but it is the result of a multilateral process (…), the first stone of a path which we all build together,” argued the Chairman of the summit, Virgilio Almeida.

Internet governance stakeholders will meet in September at the Internet Governance Forum (IGF), which will look at implementing the principles adopted in Sao Paulo. To be followed…

Dreyfus specializes in the digital economy and conflict resolution on the web. Please do not hesitate to contact us for further information.

Mobile app Snapchat, which allows user to send temporary messages, reached a settlement with the US Federal Trade Commission (FTC). The two parties found a compromise to avoid a lawsuit which would have been severely detrimental to the company.

In a lengthy statement, the Commission reported multiple misrepresentations made to consumers by Snapchat, particularly with regards to how the app works. The ephemeral nature of messages, which made the app successful, was extensively questioned. The FTC noted that messages can be saved easily through screen shots. In previous versions of Snapchat, the sender received notice of any screen shot by the recipient, but it is no longer the case now. The statement further noted that there are several ways whereby photo or video messages can be saved without impediment.

The FTC listed a significant number of complaints concerning Snapchat: transmission of the user’s geolocation and address book information without his/her consent or even lack of security in message encryption. In late 2013, the personal data of nearly 5 million users was retrieved by hackers owing to this lack of security.

It is precisely to avoid a lawsuit that Snapchat agreed to the settlement, which inter alia prohibits the company from altering its confidentiality, security and privacy policies. The settlement specifically provides that the activities of the company in respect of the aforementioned will be subject to independent monitoring for the next 20 years.

The settlement between the company and the Commission will be subject to public comments until June 9, 2014, at which point it should be signed by the two parties and thereafter approved in court. The FTC’s commitment towards a responsible collection of personal data is commendable. While increasing volumes of data are collected on a daily basis, consumer privacy must be remain a key concern for companies and states.

Dreyfus is specialized in online infringement cases. Please do not hesitate to contact us for any information.

On March 28, as part of the Economic Action Plan 2014, the Canadian government proposed amendments to the Trademarks Act. These will be the most significant changes since the 1953 act.
According to the government, the goal is to bring Canada in line with major international trademark treaties. Yet, some expert observers of trademark law believe that these changes are more closely linked to achieving administrative efficiency rather than complying with these treaties.
Amongst the major changes, Canada seeks an expansion of the definition of trademark in order to cover “a sign or combination of signs”. The international Nice Classification of goods and services classes 1-45 will also be adopted.
The trickiest question remains the acceptance of the registration of trademarks without taking into consideration previous use in Canada or abroad. There is currently a close link between trademark law and good faith in Canada. Such dissociation would contradict 140 years of case law which confirmed previous use and good faith as prerequisites for the protection of a Canadian trademark. This prerequisite of use prevents the accumulation of trademark applications that are standard in Europe.
The main effect will be an increase in objections to trademark applications by legitimate users or if the trademark has not been used for over 3 years. This bill may indeed increase the number of trademark applications made in bad faith. This simplification of the process may also lead to a loss in value of the trademark itself.
The commercial dimension of this bill through its integration in the Economic Plan seems to disappear with the trademark’s previous use prerequisite. Thus, some believe that this novelty is in violation of the Canadian constitution.
Important developments are thus expected in response to these proposed amendments to the Canadian Trademarks Act.

The manufacturing of the French beret is in the hands of a 174 year old company, Laulhère. Recently Laulhère purchased its sole French competitor, Blanq – Olibet, with a view to keeping beret production in France. However, international competitors from countries such as China, Pakistan, India and the Czech Republic are casting a shadow over French production by offering lower priced berets.

Laulhère’s willingness to save the French beret industry has been welcomed by the heart of the current government. Over the last few months, Prime Minister Jean-Marc Ayrault and Minister of “Productive Revival” Arnaud Montebourg, have both encouraged the manufacture of “Made in France” products to improve French production and create local jobs.

One wonders, however, whether the “Made in France” designation is the most appropriate one. Whilst it is clear that the “Made in Switzerland” designation makes sense in relation to watch manufacturing given the extraordinary reputation of Switzerland in that respect, it is not clear that French production enjoys the same reputational status.

Thus, why not explore the slogan “Designed in France” rather than “Made in France”? This is the choice made by US company Apple as its products are not manufactured in the US. Only its design and related activities are US based. Similarly, French products are renowned worldwide, not for their manufacturing but rather for their design and their own distinctive style.

Such a designation could constitute a real competitive advantage vis-à-vis international competitors and may create new jobs while adding value to French products. It is essential that countries pay close attention to their national brand identity as an instrument of economic policy.

To be continued…

Named “word of the year” in 2013 by Oxford dictionary, the selfie is a self-portrait taken by the user’s smartphone. This practice has become the pièce de résistance of some social networks, like Instagram or Snapchat, each equipped with their own unique attractions to selfie takers, like filters or the option to add commentary.
Whether it is considered as a hobby or a heightening of societal individualism, the usage of the selfie raises many legal issues. From a legal standpoint, the selfie is governed by the right of publicity, which, in turn, derives from the right to privacy. Since the selfie is a photograph, the foremost issue is that of publicity rights. Whilst the situation is straightforward when a person takes their own photograph, it inevitably differs when a selfie becomes a group photograph. This matter is often resolved by assuming, correctly, that those featuring in the picture have consented to be photographed.
But consent usually does not go any further, which frequently gives rise to other problems. In this era of social networks, the author of the selfie will feel the urge – if not a reflex – to post the photograph on social platforms without having obtained the express agreement of relevant individuals. However, consent to be photographed and consent to having one’s photograph posted online are different. It is thus recommended to obtain the express consent of the persons photographed in order to publish and share the picture. For the record, the consent of individuals appearing on the photograph, albeit not as the chief object (including people in the background), is not required.
The selfie may also raise the question of image rights in relation to property. When the photograph is taken indoors, the right to privacy is of significance and it may be necessary to obtain the consent of the occupier of the premises. More importantly, when the selfie is inclusive of a good covered by copyright or other IP rights, the right holders are entitled to request the withdrawal of the photograph.
Finally, during the last election, there was a surge of selfies taken in the booth. In France, there is no rule against self-photographs in the booth provided the secrecy of the vote is not infringed. The Interior Minister stated that “it should be noted that the “ballot is secret”(article L. 59 of the Electoral Code). In addition, the presiding officer may expel anyone in case of disturbance of public order.” The act of taking a picture of oneself in the booth is not in itself a disturbance to public order but can challenge the independence of the voter.
The selfie thus presents specific issues that should be handled with care, especially in respect of publication on social networks.

Dreyfus specializes in managing your online presence. Please do not hesitate to contact us for more information.

The Uniform Dispute Resolution Policy (UDRP) is a rights protection mechanism which allows the transfer or cancellation of domain names infringing trademark rights in cybersquatting cases. Currently, five centres are qualified to entertain UDRP complaints namely the World Intellectual Property Organization (WIPO) in Geneva, the Czech Arbitration Court (CAC), the National Arbitration Forum (NAF) in the United States, as well as an Asian centre (ADNDRC) with branches in Beijing, Kuala Lumpur, Hong Kong and Seoul, and more recently, the Arab Centre (ACDR) based in Jordan.

The UDRP rules constitute a common foundation enacted by ICANN, the Internet regulatory authority, and they must be adhered to by all arbitration centres. They make reference to a set of additional rules namely the Supplemental Rules defined by the centres themselves and which govern matters not covered in the main rules. Each centre has thus adopted its own rules, which evolve from time to time.

In respect of the form, most of the centres restrict the complaint to 5,000 words, but the NAF limits it to 15 pages and the ADNDRC curbs it to 3000 words.

The Czech Arbitration Court has provided for group actions (class actions) in the case where a similar legal argument can be applied to multiple domain names reserved by the same entity. A third person who shall be responsible to file the complaint on behalf of the complainants must then be appointed. The Arab Centre has a similar consolidating mechanism by virtue of which multiple claimants can merge their actions into a sole claim.

Only NAF authorizes applicants to submit additional arguments or documents within a period of 5 days from the day the registrant has or should have responded. It is to be noted however that any amendment to the complaint is prohibited. In other centres, the Supplemental Rules have not made allowance for this possibility.

With regard to the answer, it must in all cases be made within 20 days of notification of the complaint. The UDRP Rules provide for the possibility of granting the defendant additional time upon request, but not all centres have incorporated this provision into their rules. Thence, at the NAF, the applicant must specify the period of time requested, within a maximum of 20 additional days. Similarly, the ACDR allows the registrant to request for an extension to submit a response, where it has been agreed between the parties or where there are exceptional circumstances, which must be established by said registrant. These additional time limits are not automatically granted.

The issue of Language of Proceedings also arises. All centres comply with the rule laid down by Article 11 of the UDRP Rules on this matter, namely that save for the agreement of the parties to the dispute or exceptional circumstances, the language of the proceedings is that in which the registration agreement of the contested domain name is penned down. However, the centres approach the concept of exceptional circumstances differently. Indeed, the NAF does not often acquiesce to a change in the language of the proceedings, while the ADNDRC is more likely to do so, especially when the registration agreements are in Chinese and the registrants and/or applicants speak English. As concerns WIPO, the proceedings can be administered in two languages. Moreover, it may be a good idea to resort to the ADNDRC if an Asian registrar is involved so as to facilitate the implementation of the decision.

It is worthwhile to note that in addition to traditional domain names such as .aero, .asia, .biz, .cat, .com, .coop, .info, .jobs, .mobi, .museum, .name, .net, .org, .pro, .tel and .travel, upon which all centres are empowered to adjudicate on, some centres are competent to adjudicate upon UDRP and associated proceedings in relation to several other extensions. Such is the case with WIPO, which has jurisdiction for proceedings relating to 69 national extensions (ccTLDs). Incidentally, the domain name .fr was one of them until 2011 and is anticipated to revert to it in the near future. For instance, ADNDRC experts have jurisdiction over disputes in relation to domain names bearing the ccTLDs .cc, .nu, .pw, .tv and .ws, while the CAC is competent specifically for .eu names. As concerns .us, only the NAF has jurisdiction. Disputes relating to the new domain name extensions (new gTLDs) can be brought before all centres.

Dreyfus specializes in dispute resolution and can help you to choose the most appropriate center to act against cybersquatting. Please do not hesitate to contact us for any queries.