Dreyfus

Like many digital players, Fashion ID inserted a Facebook “Like” button on its website. This plug-in automatically collects and transmits to Facebook the personal data of the website users, whether or not they click on the button, and whether or not they have a Facebook account. This process takes place without any control by the website operator. Arguing that users’ rights are being infringed, a consumer association brought an action before the German court in order to stop this infringement. On 20 January 2017, the competent trial court referred several questions for a preliminary ruling to the Court of Justice of the European Union (CJEU). The main question is whether the integration of this “Like” button is sufficient to make Fashion ID a ‘data controller’ (jointly with Facebook), for the purpose of Directive 95/46/EC of 24 October 1995, which has now been replaced by the General Data Protection Regulation of 27 April 2016 (GDPR).

Although the Court must rule on the notion of joint liability and the consequences of such liability in the light of Directive 95/46/EC, which has now been replaced by the GDPR. Both texts define the data controller in the same way. As a result, the scope of the CJEU decision will most likely go beyond the present case. Aware of the stakes involved in this future decision, Advocate General Michel Bobek, in his Opinion of 19 December 2018, expressed his support for joint liability between Fashion ID and Facebook.

In the past, the CJEU has already recognised the administrator of a Facebook page as a data controller who had freely chosen to host the page on Facebook and therefore could set up the statistical processing carried out by the social network (CJEU, “Wirtschaftsakademie”, 5 June 2018, C-210/16). The Court also said that this liability might be retained even if no direct processing is carried out by the page administrator (CJEU, 10 July 2018, “Jehovan”, C-25/17). The CJEU has therefore adopted a broad understanding of the notion of joint liability.

In his Opinion, Advocate General Bobek has invited the Court to reduce the scope of joint liability in order to better identify the liability of each involved. He considers that extending the notion of data controller to any third party allowing the processing in any way would actually dilute the liability, making the protection of individuals less effective. For this reason, he proposes to link the definition of data controller with the purpose of the processing operation, which must be unique in its means and purpose.

This approach requires splitting the processing into as many subprocesses as there are purposes to get to the part in which the website operator exercises effective control. This approach would limit the website operator’s liability to the processing phase for which he is actually responsible and would not include subsequent processing operations beyond his control. In this instance, Facebook and Fashion ID pursue a commercial and advertising purpose. Therefore, Facebook should be solely liable for processing operations carried out after the data collection, while Fashion ID’s liability would be limited to the collection and transmission of such data. However, this solution proposed by the Advocate General has several disadvantages.

Thus, reducing the notion of purpose to the functions of the processing, (i.e. the technical operations of collection), conceals the advertising purpose. However, users should be able to anticipate this. The processing cannot be examined as a whole and an analysis of its compliance with regard to the consequences for the persons concerned is not possible. In the end, adopting this narrow approach would exempt website operators from requiring the disclosure of information from their operating partners that would effectively inform users, because the different data controllers involved would not be required to know the processing operations carried out by their partners.

Indeed, a data controller could try to evade responsibility by arguing his actions did not cause damage and try to put blame on all others who have beeen held to be joint data controllers. Such presumption of solidarity could be considered if the provisions of Article 26 GDPR (requiring joint controllers to transparently determine responsibilities) are not met.

Moreover, the Advocate General does not address the question of cascading responsibilities. Indeed, in the case of multiple data controllers, a new division of the processing operation would have to be carried out under this solution. For example, if Facebook provides data to a partner, the company will have limited liability and it would be up to its partner to enforce the GDPR.

An extensive interpretation of joint liability in cascade would force operators to identify the relevant mechanisms for ensuring respect for the rights of individuals.

The choice of an extensive or restricted interpretation of joint liability now rests with the CJEU. Its decision is therefore highly anticipated since it will have a direct impact on website publishers and the protection of private individuals’ personal data.

Dreyfus assists its clients worldwide in their strategies to protect and defend their rights on the Internet. Do not hesitate to contact us!

To the delight of our taste buds, flavors and gourmet creations are part of our daily lives, but from a legal perspective, the situation is more delicate and the flavor more bitter. Indeed, there is a consensus on the need to protect culinary creations but intellectual property law currently offers only peripheral protection.

As we saw in a previous article, cooking recipes can be protected by author rights, the aesthetics or visual appearance of the creation is covered by designs, innovative techniques used in the creation may give rise to patent protection and the name can be registered as a trademark. None of these solutions protect the actual creations themselves. In addition, certain conditions must be met, which may not reflect practice. Under these circumstances, the most appropriate solution is usually author rights protection, which is intended to protect an original creation regardless of its form of expression (Article L. 112-1 of the French Intellectual Property Code). Nevertheless, the Court of justice of the European Union (ECJ, 13 November 2018, “Levola”, C 310/17) has refused to protect flavors in this way. The French Cour de Cassation has adopted a similar position on fragrances (Cass. Com., 10 December 2013, n°19872). In short, when it comes to culinary creations, the law remains speechless.

In order to fill this legal void, several deputies have submitted to the National Assembly a bill about the protection of recipes and culinary creations, on April 30, 2019.

The main purpose of the text is to clarify the situation of traditional recipes on one hand and culinary creations on the other hand.

Thus, the creation of a new institution, the “Fondation pour la gastronomie française”, is envisaged. This private non-profit legal entity would be in charge of listing and protecting traditional recipes in order to identify restaurateurs who respect them. The aim is to promote the knowledge, conservation and enhancement of French gastronomy as well as reassuring consumers.

Moreover, the bill provides for the creation of a public institution, the “Institut national de la création culinaire certifiée” (INCC), to ensure the protection of culinary creations. The INCC would issue a new industrial property title, the certificate of culinary creation, to provide protection for a period of 20 years. A hybrid between author rights and industrial property rights, this title includes economic rights as well as three moral rights (right of disclosure, right to the name, right to respect for culinary creation).

The conditions for granting such a certificate are:

• the creation must be new with respect to the state of the culinary art;
• the existence of a creative activity, not resulting in an obvious way from the state of the art for a skilled person;
• an own gustatory character.

The bill excludes from protection a number of productions such as creations involving elements of the human body, narcotics or creations violating public order. The text also provides a specific regime for employees’ creations, close to the one existing in author rights, as well as an opposition procedure lasting two months from the publication of the application for the grant of a culinary creation certificate. Unsurprisingly, any infringement to this new property right would constitute an act of counterfeiting.

This bill, being a combination of trademark law and author rights, is not convincing. The Chefs themselves do not appear to be asking for such protection and the measure will probably mainly benefit the food industries. The bill has now been referred to the Committee on Cultural Affairs and Education. This is a case to follow.

Specializing in intellectual property, Dreyfus will know how to create the perfect recipe to enhance and protect your rights. Do not hesitate to contact us!

On April 30, Spain finalized the reform of its trademark law, started in late 2018. From that date, the Royal Decree 306/2019 of 26 April 2019 amending the Regulations under Spanish Trademark Act 17/2001 entered into force.

The possibility to request proof of use in defense in opposition proceedings is one of the main innovations introduced into Spanish law by the 2018 reform. The European Union already provides for such a means of defense in article 47 of the European Union Trademark Regulation (EUTR). Thus, this reform of Spanish law is part of the welcome European harmonization.

The Royal Decree 306/2019, under discussion, establishes how this new defense will be implemented.

Thus, from now on, proof of use may be required for all opposition proceedings filed since May 1, 2019.

This mean of defense can be invoked against Spanish trademarks and trade names and against international trademarks designating Spain. However, not all prior right can be contested. To be challenged, the prior trademark or trade name must have been registered for at least five years. The holder of such prior rights will then have the burden of proof of the actual exploitation of the rights claimed.

If the evidence provided is insufficient, then the opposition request will be rejected. The relevant prior right or the existence of a likelihood of confusion will not be taken into consideration for the resolution of the dispute.

In this respect, the documents provided as evidence must refer to the goods and/or services for which the prior right is registered. If the opposition is based on part of the goods and/or services, then the right holder must provide the proof of a genuine use only for those goods and/or services. The supporting evidences must establish the real and serious exploitation of the prior right. This exploitation is established when products and/or services are offered for sale and put into the market.

The documents communicated must indicate the place, date, extent and nature of the sign’s use. For example, that may be catalogues, brochures, invoices, labels, advertisements, etc. Items provided by third parties constitute concrete and independent evidence. As such, their probative value is higher than the value given by the prior trademark owner’s evidence.