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Legal professionals: Prime targets for hackers

business-dreyfus-8-150x150Since the revelations in the Edward Snowden case and the discovery of the Heartbleed flaw which led to the massive theft of personal data, hackers are very much in the news. But now, web hackers are starting to target lawyers and other legal professionals who are supposed to ensure that their clients’ information is duly protected.

 

The “hacking” consists of a discreet exchange of illegal and/or personal information by breaking into a network. This is becoming common practice and should constitute a real threat, not only to businesses, but also to States, in the years to come. According to the head of Israeli military intelligence, hacking will soon become “the greatest evolution” in warfare techniques, greater than gunpowder or air forces. And this is a matter of great concern for legal professionals.

 

Indeed, more and more clients are requesting firms to adopt additional measures to monitor their networks and thus prevent the leakage of confidential or valuable information, such as trade secrets. Another major concern is the possibility for hackers to retrieve bids or tenders before these are made public.

 

The police have for a long time been apprehensive of the fact that law firms do not protect themselves enough against computer hackers. Yet, since 2011, the American FBI has been organising awareness sessions on computer security and industrial espionage. However, according to Mickael Stout, a consultant in computer security, “the hackers will not stop anytime soon, and it is obvious that companies will have to keep up with the latest technology to ward off all threats.”

 

It must be noted that this movement is in fact gaining more ground, instead of weakening. The emergence of “Hackivists” such as the Anonymous, with a political aim is to make public certain information, left a deep impression globally. It is therefore highly recommended to keep close track of developments in technology and to secure as much as possible all of the companies’ data.

 

Dreyfus is specialised in the protection of intellectual property online and can assist you in defining your strategiesand reinforcing the measures you plan to implement. Please contact us for further details.

 

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Registration and use of the domain names and constitute an infringement of the title “Val thorens” which is protected by copyright

business-dreyfus-81-150x150On May 28, 2014, the Court of Appeal of Lyon found that the title “Val Thorens” is protected by copyright. Consequently, the registration and use of the domain names <val-thorens.net> and <val-thorens.org> amount to infringement.

M.V registered the domain names <val-thorens.net> and <val-thorens.org> in 1998 and 2000 respectively. He is a consultant in information technology, web hosting and the management of advertising spaces. Regarding the Tourism Board of Val Thorens, it registered the trademark “Val Thorens” in 2004.

The Court of Appeal firstly reiterated that “in the absence of any claims from the author(s), the use of a work by a legal person in its own name leads to the presumption, as far as third parties accused of infringement are concerned, that this person holds intangible property rights over the work, whether such work is collective or not.” As such, the Tourism Board has locus standi.

The term “Val Thorens” in this case relates to a title of works, brochures and websites, the originality of which is not at issue. According to the Court, the title is the result of a “creative process, bearing the mark of the author’s personality.” It is linked to toponyms, such as the valley of the Thorens stream, leading to the creation of a new term that refers to these works in a “specific, original and recognizable” way. Thus, the Court held that “Val Thorens” is protected by copyright.

While the Board adduces evidence that the website <val-thorens.com> has been used since April 1997, M.V does not provide any evidence showing that he registered or used the domain name <val-thorens.org> before 2000.

Finally, the Board uses the trademark Val Thorens for holiday accommodation services. According to the Court, M.V’s placing of real estate advertisements on the websites <val-thorens.org> and <val-thorens.net> constituted trademark infringement. Indeed, there is a risk of confusion in the mind of the consumer owing to the similarity of the services and products.

Reliance on the decision by the Court of Appeal of Lyon should be tempered. Indeed, case law on the protection of titles of works is strict and unpredictable. The courts carry out a strict assessment of a title’s originality (Court of Appeal of Paris, September 6, 2013, “Les amoureux de la Bastille”; CA Paris, group 5, chamber 2, June 19, 2009, “L’empreinte de l’ange”). This is why it is difficult to consider this decision as creating a precedent. In light of the unpredictable nature of case law in relation to copyright matters, the best option would be to rely on trademark law and therefore to register one’s trademark.

 

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Customs regulation to be interpreted in favor of right-holders: Customs authorities can, on their own initiative, proceed with a customs seizure

Symbole copyrightThe European Court of Justice rendered a preliminary ruling on April 9, 2014 in favor of right-holders with regards to customs regulation (CE) No. 1383/2003 and particularly the implementation of customs seizures (C-583/12, Sintax Trading OÜ / Maksu-ja Tolliamet).

In the present case, the Estonian authorities refused to release bottles of mouthwash imported from the Ukraine on the grounds that they infringed a patent registered under the name of the company Acerra. The latter did not comply to “the procedure to determine whether an intellectual property right has been infringed under national law” (article 3 paragraph 1 of regulation (EC) No 1383/2003. However, the proceedings were initiated by the Estonian customs authorities alone.

Does it therefore mean that, under the customs regulation, customs authorities can proceed, on their own initiative, with a customs seizure without the intervention of right-holders?

The European Court of Justice replied in the affirmative. It specified that the regulation does not seek “only to protect private rights and interests but also to protect public interests.” Indeed, one of the goals of the regulation is to prevent the placing on the market of goods which deceive the consumers and endanger their health and safety. Therefore, customs authorities can act on their own initiative, without any intervention by right-holders, in relation to legal actions designed to establish the infringement of intellectual property rights.

Furthermore, Regulation (EC) No 1383/2003 was repealed and replaced by Regulation (EU) No 608/2013 of June 12, 2013 regarding customs enforcement of intellectual property rights. The Court’s ruling applies in relation to the new regulation.

This ruling of the Court in favor of the right-holders is  greatly welcomed. In the event of an omission on their part, customs authorities can always proceed with a customs seizure to protect and defend their rights.

 

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Instagram not liable for changes to its terms of service

business-dreyfus-81-150x150On February 28, 2014, the Federal Court of California ruled in favour of Instagram in a case between the social network and one of its users (Rodriguez v Instagram LLC, CGC 13-532875) who alleged breach of contract by the web-based photograph sharing platform as well as violation of California’s contract law.

 

After it was bought by Facebook, Instagram modified its terms of service. In compliance with the contractual notice period, Instagram announced the changes in December 2012 and the new terms of service came into effect on January 19, 2013. Three material changes were made to harmonize the terms of service of Instagram and Facebook:

 

  • Users are owners of the content posted and no longer simply right holders in the content.
  • Instagram asserted the right to use posted content under a transferable and sub-licensable license.
  • The terms of service now include a liability waiver.

To facilitate the adoption of these new terms, Instagram provided that continued use of the service after January 19, 2013 would mean implicit consent to its new terms. A user, who believed that these terms had been imposed upon her without her consent, brought the case before the courts.

 

The judge of the federal court of California ruled in favour of Instagram on all claims.

 

Firstly, the plaintiff had a full opportunity to read the new terms, which she did. She could have declined the new terms by no longer using Instagram services. Yet, she did continue to use the website.

 

The plaintiff also argued that filing a lawsuit demonstrated that she rejected the new terms. The courts did not follow this line of reasoning and held that there was “no basis to conclude that the filing of a complaint is sufficient to reject the new terms – most especially after Plaintiff continues to use and presumably benefit from the Instagram site”.

Thus the social network does not incur contractual liability based on the plaintiff’s alleged non-acceptance of the terms. The decision of the Federal Court of California was logical, since social networks as well as users need legal certainty.

 

Dreyfus law firm is specialised in dispute resolution on social networks. Please do not hesitate to contact us for more information.

 

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First dismissal of a URS complaint for a .sexy domain name

business-dreyfus-81-150x150On May 25, 2014, the American National Arbitration Forum (NAF) delivered its 44th URS (Uniform Rapid Suspension) decision, the first in respect of a domain name bearing the .sexy TLD.

 

The domain name concerned, <finn.sexy> is reserved by North Sound Names. Spearheaded by Frank Schilling, also the founder of Uniregistry, which, to date, is a registry comprising of 50 new gTLDs, North Sound Names is used to store domain names in the TLDs managed by Uniregistry before they are made available to the public. It is in this context that the disputed domain name was reserved on April 15, 2014.

 

The domain name resolves to a parking page offering the name for sale and containing links called “First Names”, “Selfies”, “Diet”, “Fitness”, “Social Networks”, “Dating” and “Modeling.” It is to be noted that these terms are clearly detached from the business activities of the complainant, Finn.no, the largest online market in Finland.

 

In support of its complaint, the complainant mentions its extensive use of the Norwegian trademark FINN. This allows the expert to find that the first condition of the URS procedure has been satisfied as the domain name is identical to the trademark. With regard to the legitimate interests or the rights of the registrant, the expert notes that the latter employs the term “finn” in its common usage, i.e. referring to Finnish people. According to the expert, the registrant in fact has a legitimate interest to use this name. On the issue of bad faith, neither the fact of the domain name in dispute being offered for sale nor the notification received by the registrant from the Trademark Clearinghouse (TMCH) convinced the expert. Logically thus, the complaint was dismissed.

 

The URS procedure is still at an early stage and it is difficult to foresee how the case law of the centres will develop. Yet, there have been many dismissals since most proceedings are primarily concerned with clear cases of trademark abuse. A more appropriate option therefore would have been to proceed on the grounds of the UDRP (Uniform Dispute Resolution Policy). Indeed, while the rules are similar, UDRP experts espouse a more flexible approach and it is usually easier to lend credence to one’s complaint. Without entertaining any preconceived opinions about the experts’ views, it seems that a transfer unto the applicant would have been warranted.

 

Dreyfus specializes in domain name dispute resolution and guides you in the defense of your rights on the Internet. Please do not hesitate to contact us for any queries.

 

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French “Toubon” Act is a source of inspiration to Québécois

Symbole copyrightEnacted in 1994, the “Toubon” Act is one of the most famous laws in France. It requires companies to translate in French their slogans, particulars or information displayed on all media meant for the public. The major exception to this rule is the right to a trademark, since trademarks in foreign language need not be translated.

 

The Toubon Act attracted the attention of the Office québécois de la langue française. Back in 2012, that office drafted a Charter for retailers to use the French language and launched a publicised campaign promoting the use of the French language on storefronts.

 

Akin to the Toubon Act, the Charter provides for a trademark exception. Yet the office opposes it. It is of the view that storefront signage are rather considered by the public to be business names rather than trademarks. According to the office, commercial signage should therefore be translated into French. There is thus a clear conflict between what the law says and the interpretation made by the Québécois office.

 

It is in this context that eight retailers lodged a case before the Québec Superior Court asking to rule on the interpretation of the Charter. The question posed to the Court was clear: either the sign is a recognised trademark within the meaning of the Canadian Trademarks Act and the exception should apply; or it is not and it should therefore be translated in French.

In a declaratory judgment of April 9, 2014, the judges of the Québec Superior Court opined that “a trademark forms part of a legal concept that is governed by its own rules and differs significantly from that of a trade name or business name”.

 

The judge therefore applied the law stricto sensu and held that trademarks displayed on storefronts needed not be translated.

 

It is a fact that Québec traditionally holds particular importance to the French language; however, this decision is important since it denotes that tradition must not override the law.

 

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Class action procedure adopted in France

business-dreyfus-81-150x150In March 2014, the French Parliament adopted the Hamon Consumer law (Act N˚ 2014-344 of March 17, 2014) creating the first class action procedure in France.

This class action procedure will enable customers to rally and sue for customer protection and antitrust claims. For the time being, consumer associations are the sole representatives allowed to defend consumer rights in court. These associations, submitted to ministerial approval, can be mandated by several consumers for their defense. This civil action is limited to the recovery of pecuniary damages for injuries allegedly caused by a same breach of contract, statutory duty or anti-competitive practices by the same defendant.

For a long time, class actions were denied as it was considered one can only defend one’s own interests in court. But this time, consumer protection prevailed and after examination by the Constitutional Council, the bill was adopted.

Such group actions have a larger impact than individual actions and should favor citizens’ rights. Currently, this action is very unfavorable to the defendant. The adoption of this new procedure can be seen as a response to the recent scandals involving consumers’ injuries. But even when they are not found guilty, the companies will suffer from the media attention.

This new procedure will take effect after the publication of the implementation decree.  In 30 months, a report is scheduled to assess the procedure. Now that the door has been opened, the government expressed its wish to extend class action procedures to environmental and health claims.

This Consumer law also includes measures related to online consumer protection. For more information regarding these measures, you can read the article “E-commerce: Amendments to the law”.

 

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What about the evidence of the coexistence of trademarks?

Symbole copyrightThe Court of First Instance of the European Union has intervened on the issue concerning the proof of coexistence of marks on October 2, 2013 (TPICE T-285/12 The cartoon Network, Inc. v OHIM and another). The Court has clearly ruled that the applicant who avails himself from the coexistence of a mark should prove the absence of likelihood of confusion within the mind of relevant public.

On April 2, 2012 (R 699/2011-2), the Board of Appeal rightfully contended as regard to the Court, that the applicant has not proved the way the consumer has been confronted to the conflicting marks on the market. The elements of proof have not demonstrated any absence of confusion during the period the marks were commercialised.

The issue is hence to know how to prove the absence of likelihood of confusion between the marks. The coexistence of earlier marks on the market can in some circumstances eliminate the risk of confusion between two conflicting marks. This hypothesis requires the applicant to demonstrate the absence of likelihood of confusion between the earlier marks in the mind the relevant public provided that they are identical. However, the proof of coexistence of registrations and the use of the mark by the applicant is insufficient and not relevant for the Courts.

In short, the probability of proving the peaceful coexistence of trademarks is weak. Indeed, how to prove that confusion has not occurred during the commercialisation of the marks? The outlines of the evidence of trademarks’ coexistence still need to be defined. Therefore, it is of minimal relevance in a claim of likelihood of confusion before the OHIM. The ultimate decision in the matter is within the hand of OHIM.

 

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New gTLDs: Sunrise calendar – June 12th 2014

business-dreyfus-81-150x150Last week, it was time for .TOKYO Sunrise to see an end. This is neither the first new gTLD for a city nor the last. After the .BERLIN in March, the .LONDON and the .NYC whose Sunrise period will end newt week, we will welcome the .HAMBURG and also the much awaited .PARIS.

For some of these TLDs, a local presence will be mandatory. If you have business in one of these cities, think about registering your names !

We remind you that a Trademark registered in the Trademark Clearinghouse along with the corresponding SMD file is required to register a domain name during a Sunrise period.

 

1) Sunrises ending in the next 10 days

TLD Sunrise Starts Sunrise Ends
moe 13/05/2014 13/06/2014
industries 15/04/2014 14/06/2014
parts 15/04/2014 14/06/2014
supplies 30/04/2014 14/06/2014
supply 15/04/2014 14/06/2014
tools 15/04/2014 14/06/2014
cooking 15/04/2014 15/06/2014
country 15/04/2014 15/06/2014
fishing 15/04/2014 15/06/2014
horse 15/04/2014 15/06/2014
rodeo 15/04/2014 15/06/2014
vodka 15/04/2014 15/06/2014
consulting 16/04/2014 16/06/2014
kaufen 16/04/2014 16/06/2014
nyc 05/05/2014 20/06/2014
fish 22/04/2014 21/06/2014
report 22/04/2014 21/06/2014
vision 22/04/2014 21/06/2014

 

2) Running Sunrises

TLD Sunrise Starts Sunrise Ends
services 29/04/2014 28/06/2014
gop 28/04/2014 30/06/2014
actor 30/04/2014 30/06/2014
rocks 30/04/2014 30/06/2014
blackfriday 01/05/2014 30/06/2014
christmas 01/05/2014 30/06/2014
citic 03/06/2014 03/07/2014
中信 (citic) 03/06/2014 03/07/2014
网址 (url) 03/06/2014 03/07/2014
capital 06/05/2014 05/07/2014
engineering 06/05/2014 05/07/2014
exchange 06/05/2014 05/07/2014
gripe 06/05/2014 05/07/2014
globo 09/06/2014 09/07/2014
moscow 10/06/2014 10/07/2014
москва 10/06/2014 10/07/2014
associates 13/05/2014 12/07/2014
lease 13/05/2014 12/07/2014
media 13/05/2014 12/07/2014
pictures 13/05/2014 12/07/2014
cologne 12/06/2014 13/07/2014
koeln 12/06/2014 13/07/2014
haus 14/05/2014 14/07/2014
reisen 20/05/2014 19/07/2014
town 20/05/2014 19/07/2014
toys 20/05/2014 19/07/2014
university 20/05/2014 19/07/2014
fail 27/05/2014 26/07/2014
financial 27/05/2014 26/07/2014
limited 27/05/2014 26/07/2014
wtf 27/05/2014 26/07/2014
london 29/04/2014 31/07/2014
vegas 02/06/2014 01/08/2014
care 03/06/2014 02/08/2014
clinic 03/06/2014 02/08/2014
dental 03/06/2014 02/08/2014
surgery 03/06/2014 02/08/2014
yokohama 05/06/2014 04/08/2014
cash 10/06/2014 09/08/2014
fund 10/06/2014 09/08/2014
investments 10/06/2014 09/08/2014
tax 10/06/2014 09/08/2014
bio 11/06/2014 10/08/2014
audio 05/06/2014 19/08/2014
hiphop 05/06/2014 19/08/2014
juegos 05/06/2014 19/08/2014

 

3) Sunrises to come

TLD Sunrise Starts
Sunrise Ends
公司 (entreprise) 16/06/2014 31/07/2014
网络 (network) 16/06/2014 31/07/2014
desi 16/06/2014 16/08/2014
career 16/06/2014 17/08/2014
discount 17/06/2014 16/08/2014
fitness 17/06/2014 16/08/2014
furniture 17/06/2014 16/08/2014
schule 17/06/2014 16/08/2014
beer 23/06/2014 23/08/2014
luxe 23/06/2014 23/08/2014
claims 24/06/2014 23/08/2014
credit 24/06/2014 23/08/2014
creditcard 24/06/2014 23/08/2014
gratis 24/06/2014 23/08/2014
website 24/06/2014 23/08/2014
rio 30/06/2014 03/08/2014
reise 01/07/2014 31/07/2014
accountants 01/07/2014 30/08/2014
digital 01/07/2014 30/08/2014
finance 01/07/2014 30/08/2014
insure 01/07/2014 30/08/2014
bayern 01/07/2014 01/09/2014
church 08/07/2014 06/09/2014
guide 08/07/2014 06/09/2014
life 08/07/2014 06/09/2014
loans 08/07/2014 06/09/2014
hamburg 14/07/2014 13/08/2014
saarland 17/07/2014 15/09/2014
hiv 21/07/2014 20/08/2014
black 22/07/2014 21/08/2014
meet 22/07/2014 21/08/2014
versicherung 05/08/2014 04/09/2014
بازار (bazaar) 26/08/2014 28/10/2014
paris 09/09/2014 11/11/2014
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Google loses suit as the European Court of Justice (ECJ) upholds the right to be forgotten!

business-dreyfus-81-150x150On May 13, 2014, the European Court of Justice dismissed Google’s claims on the grounds that search engines are responsible for the processing of personal data published on web pages (ECJ, Google Spain SL, Google Inc. / Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez, May 13, 2014, C-131/12).
A Spanish internet user sought from the Spanish Data Protection Agency the deletion of two press articles that reported his indebtedness. He also requested that these articles be de-indexed by Google since they no longer reflect his situation.

In this respect, the ECJ upheld a fundamental right: the right to be forgotten. Henceforth, when so requested by a person, search engines must delete search results that are irrelevant and outdated.
Furthermore, the Court is of the view that Google and other search engines have to exercise control over personal data as they retrieve, record and organize them in a systematic way. They are thus controllers within the meaning of EU privacy law.

The Court also mentioned all persons have a right to control their personal data, irrespective of whether they are public figures or not. Therefore, if a person wishes that irrelevant or inaccurate information pertaining to them be deleted from search engine results, they may request the deletion thereof even if the information has been published legally. Such a request may be addressed directly to the search engine operator who must duly examine its merits.

Finally, the decision to delete a person’s personal data depends “on the nature of the information in question, on its sensitivity for the person’s private life and on the interest of the public in having that information, an interest which may vary according to the role played by that person in public life.”

The ECJ upheld, in the end, the right to be forgotten. Nonetheless, it is not an absolute right since a balance must be struck between the freedom of expression, of information and the right to privacy. Finally, problems related to the enforcement of this right to be forgotten have already arisen following this decision.

Indeed, in the three days following the decision, Google received hundreds of withdrawal requests of personal data. Google reported on the complexity of processing these requests since they are in different languages and given that particular attention must be given to each of them.

Nevertheless, the European Court of Justice’s decision holds that legal action may be initiated before a supervisory authority or a court against the search engine operator and/or the latter may be heavily fined if it does not take any action.

In order to regulate the right to be forgotten, the CNIL’s annual report of May 19, 2014 offers effective means to control the publication of personal data. First and foremost, the CNIL recommends the elaboration of a framework of reference on the duration of conservation of personal data. The rationale behind such a recommendation is to provide guidelines for those in charge of the processing regarding how long they may keep personal data. Moreover, the CNIL suggests tools that would allow internet users to have better control on the publication of their data. For example, they could define a time limit for publication, modify their data or delete it. Lastly, the CNIL advocates that the right to be forgotten should be supplemented by an obligation to de-index without delay incumbent to search engines from the moment an internet user has obtained the deletion of the initial information.

 

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