Dreyfus

Two three-dimensional trademarks bearing on the silhouette of the famous London taxi disabled for lack of distinctiveness.

The silhouette of a product registered as a trademark: what are the stakes?

The three-dimensional brand, which aims to protect the silhouette of a product, is a key issue for companies. However, such trademark registration is regularly refused for lack of distinctiveness by the courts. This is evidenced by the decision taken on November 1st, 2017 by the Appeal Court of England and Scotland, which upheld a first instance decision seeking the annulment of European three-dimensional trademarks 951871 and 2440659 in class 12 for vehicles including taxis. These trademarks were registered by the London Taxi Corporation, the famous London taxis. The company had sued its competitor Frazer-Nash Research Ltd & Anor for infringement of its trademarks for the manufacture and marketing of similarly shaped vehicles, which replied by cancelling these trademarks.

This judgment recalls the fundamental principles set out in Community legislation and case law on three-dimensional trademarks. Even if today many brands bear the silhouette of the products they are targeting (e. g. the famous Coca-Cola bottle), it is required that this shape be sufficiently distinctive, that it should carry an arbitrary character in relation to the services or products it designates.

A shape certainly famous, but not very distinctive…

In the present case of November 1st, 2017 (Case No.: A3/2016/0867), the Appeal Court, after defining the target audience for the products marketed under the contested trademarks, namely both taxi drivers and their customers, set out to assess the distinctive character of the latter. This distinctive character is one of the essential elements of trademark registration.

To this end, the Appeal Court followed the first instance decision which had held that the registered trademarks lacked distinctive character because they did not deviate sufficiently from the norms and habits of the sector, as required by case law (CJUE, Judgment of October 20th, 2011, Freixenet / OHIM, C-344/10). Indeed, it was decided that the silhouettes of taxis registered as a trademark can only be perceived by the consumer as a variant of the silhouette typical of a taxi or more generally of a vehicle and not as a form that would really distinguish the origin of the production. Since this inherent distinctiveness was not present, the Court subsequently assessed whether this distinctiveness could have been acquired through use.  Once again, it upheld the trial decision, finding that there was no evidence to suggest that the intended audience, including the customers of taxi drivers, would clearly associate the form of the taxi with the production of the vehicle supplied by London Taxi Corporation. It stressed that, in all circumstances, the silhouette of a product is rarely used as an indicator of origin by the relevant public. It therefore concluded that in the present case, the customer base attached more importance to the service provider and the related London regulations than to the producer of the vehicles in question when using the offered services.

The British courts, tough on the three-dimensional trademark?

This decision is part of a strict assessment of distinctiveness by the UK, and more generally European and Community courts. Indeed, the High Court had already refused to register the shape of the famous KitKat chocolate bar, marketed by Nestlé, as a three-dimensional trademark for lack of distinctiveness, despite the product’s reputation acquired over the last few decades. It thus followed OHIM’s earlier decision. (Decision of the High Court of England and Wales, 20 January 2016, CH/2014/0392, CH/2013/0394)

At the time, it was felt that such registration would have given a significant competitive advantage to the biscuit giant. Such an assessment may also be made in respect of the London taxi manufacturer.
This judgment highlights the difficulty in conferring on the silhouette of a product the right granted by the three-dimensional trademark. It would, however, have been interesting to question the outcome of the present judgment if the form of the taxi had been filed as a design and not as a trademark…

The French Supreme Court recently stated that a service provider leading a selective distribution network could lawfully forbid any sale of its products on a marketplace. Indeed, in a decision dated September 13, 2017, the Court held that if a lawful selective distribution network is in place, there is no reason to contest its right to forbid the sale of products on online platforms that have not been approved (Cass. Com., September 13, 2017, No. 16-15.067).

In this case, Caudalie, a manufacturer of cosmetic products under its trademark and distributing its products via a selective distribution network, is suing eNova santé on the basis of Article L.442-6, I, 6 of the French Commercial Code for having sold its products on its online platform without being part of the selective distribution network.
Caudalie considered that the sale of its products via the online platform thus outside of the selective distribution network, constituted a manifestly unlawful disturbance. The company argued that such behavior was against the prohibition of selling outside the scope of the selective distribution network to its selective vendors.

In a ruling dated February 2, 2016, the Paris Court of Appeal ruled in favor of eNova santé and held that the restriction requested by Caudalie represented a restriction of competition. It referred to several decisions in which similar facts presented themselves: two decisions of the French Competition Authority of July 23, 2014 and of June 24, 2015 regarding the selective distribution network of Samsung, a decision dated November 18, 2015 of the same Authority regarding an Adidas case and of a decision of the German Competition Authority regarding Asics and Adidas. The facts were similar in each of the cases and the restriction of competition was recognized. Judges held that the interdiction imposed on Caudalie’s selective vendors to use an online platform, whatever the characteristics, could constitute a restriction of competition excluded from the benefice of any exemption. Therefore, no manifestly unlawful disturbance could be found.

The Supreme Court overruled this decision and stated that the Paris Court of Appeal did not explain how the decisions it referred to were susceptible to exclude the existence of a manifestly unlawful disturbance resulting of the violation to the selective distribution network of Caudalie. Said selective distribution network has been precisely held lawful by a decision No. 07-D-07 dated March 8, 2007 of the French Competition Council.

The decision of the Paris Court of Appeal was thus devoid of any legal basis and therefore annulled.

Amazon shows us once again how the retail trade evolves at the pace of technology, prompting us to consider such changes in judicial terms.

Amazon Go, the revolution of physical commerce

The e-commerce leader intends to revolutionize our shopping habits with a new concept of fully–automated physical store. Named Amazon Go and equipped with multiple sensors and cameras, it allows customers to make purchases without having to go through the checkout. To do so, consumers scan their phones on an entry portal via a previously downloaded application, pick up their items and go back through the portal. They are subsequently billed automatically via their mobile phone. In short, no cash register staff indicating the amount to be paid and no credit card to validate. So far, this technology has only been tested in the United States, through a single store in Seattle. An event that nevertheless raises the question of the flexibility of French legislation, and even more so European law on such an innovation, if it were to spread overseas.

When does transfer of ownership occur?

Transfer of ownership is the action by which a property changes hands. It takes place for example under French law “at the time the contract is signed” (art. 1196 C. Civ.). Traditionally, in a physical store, transfer is deemed to take place when the item sold is paid for in full at the checkout. (Cass. Com. 8 January 2002, no. 98-13142). It is therefore considered that the final delivery of the object is only granted by the seller to the buyer at the time of payment of the price. In the case of Amazon Go, there is no physical payment per se. At what point can it then be deemed that the transfer of ownership takes place? If we consider that this takes place upon exiting the store, when the automatic invoice is issued, we may wonder whether Amazon would grant itself the right to take back the goods in the event that the payment is not completed due to, for example, a sensor error. This would not be a transfer of ownership for the buyer, then, but merely a holding of the supposedly sold item.

This question actually arose. A journalist tested the system and came out of the store with a pot of yogurt in her hand, which she thought she had paid for. When she looked at the invoice, she noted that the sensor had not taken this purchase into account. Finding herself unwittingly shoplifting – which is, of course, a legal aberration from a criminal point of view, the intentional element being a sine qua non condition for qualifying a robbery – she shared the anecdote on the social networks. The event went viral and the brand demanded payment for the product, which the journalist refused. Not wanting to give in to the bad buzz, the e-commerce giant finally made a commercial gesture by offering the yogurt. Having confidence in its nonetheless fallible system, the brand had not stipulated any means of settling such conflicts in its terms of sale. Similar questions arise in other already identified cases, such as poor distinction between two clients of the same physical size in close proximity. It would be very unpleasant to be charged for a product taken by another consumer….

Amazon Go, a remote retail service?

In addition, this new concept highlights the thin line that now separates physical and online commerce and the legal implications that follow. Insofar as Amazon Go requires online services, such as the billing application, to enable its users to purchase the goods offered for sale, , it is legitimate to wonder whether this constitutes distance selling, in which case it should be subject to the applicable legislation. First of all, Article 10 of European Directive 2011/83 on consumer rights, transposed in Article 121-21 of the French Consumer Code, requires the seller to offer a right of withdrawal. In principle, store purchases are not affected by such a right. Technically, such purchases are firm and definitive. It is true, however, that in practice, many retailers make a goodwill gesture by offering the possibility of exchanging and refunding certain items. Nevertheless, from a purely legal point of view, the question arises in such types of sales. In addition, as an example, French law also specifies a few particularities in terms of “electronic” sales, which could be related to a purchase at Amazon Go. Article 1127-1 of the Civil Code requires, for example, that the customer be provided with “the various steps to follow in order to conclude the contract electronically” and “the technical means enabling the offer recipient, before the conclusion of the contract, to identify any errors made in entering data and correct them“. Amazon Go should therefore ensure that users can benefit from all this data before they leave the store. In addition, even though Amazon Go’s principle is that consumers can make their purchases as quickly as possible, they should always be able to keep an eye on their shopping cart; the question remains as to how, in a fully automated store, they could change, for example, any errors made by sensors.

If Amazon decides to generalize its concept, it would be interesting to see how it would deal with these legal constraints.

Being symptoms of the language revolution in the Internet era, Emoticons, a sort of “digitalized emotions”, have been face with Trademark Right. Emoticons are sequences of characters that describe emotions, feelings or sensations in a written speech. Widely used nowadays on social networks, their paternity is still a subject of debate.  Although the idea of drawing a smiling figure goes back a long way, it seems that the first person to use the smiley face per se was the New York Herald Tribune in 1953 during an advertising campaign. At that time, however, no one attempted to protect the smiling little figure.

A suspicious smile for the brand

Emoticons have become an inevitable part of our society, and it is therefore only natural that companies have taken an interest in them. Widely used in the world of marketing, as evidenced for example by McDonald’s advertising campaign, many companies have attempted to acquire brand rights over these sequences of characters, which are meant to express the emotions of their emitters. Intellectual property law was then questioned, mainly with regard to the distinctive character – necessary for the registration of a trademark – of these totally trivialized signs. An interesting way of analyzing this point is by looking at the case law in recent years in Europe but also in the United States.

The United State, more prone to registration as a trademark

The company Despair. Inc. (of the satirical site despair.com) created the buzz by registering the “: – (” in the year 2000 as a trademark and announcing its intention to sue the 7 million users who would violate it. The site later announced the satirical scope of this threat, which was intended to highlight certain aspects of intellectual property that were considered absurd. Despair. Inc particularly criticized the monopolization of already trivialized signs by certain companies. What, in fact, make you smile… However, this event highlighted an interesting point: such a registration had been totally tolerated by the United States, which did not seem to be hindered by a potential lack of distinctiveness or by the fact of applying an intellectual property right on a sign belonging to the public domain.

A less smiling Europe…

First of all, we have to look at France, where, in 1971, history smiled at the young entrepreneur Franklin Loufrani. He then registered a stylized figure named “Smiley” as a trademark and created The Smiley Company, now based in London and owner of the yellow smile rights. Faced with numerous disputes, Loufrani’s brand never faded, for example, condemning the AOL service provider in 2005 for exposing a smiley on its home page or, in 2006, the Pier Import furniture chain for marketing “smiling balls”. Courts have each time, validated the distinctive character of the smiley and ruled that no trivialization of the sign prior to registration could be proved. Is the yellow mark infallible? Registered in more than 100 countries, there is no indication that foreign courts will be as lenient towards her in future disputes…

Doubts are all the more convincing as the European courts have been much less inclined to record emotions. Many courts around the world have been reluctant to consider such registration. Indeed, EUIPO rejected Pricer AB’s application for registration of the sign “; – (” (EUIPO, 3rd Octobre 2011, ref. no. V2909 IEUOO/AD/cer), arguing in particular that it was contrary to the public interest for a company to have a monopoly on such an everyday sign. It also raised the lack of distinctiveness of the sign. This decision was followed by the German and Finnish courts concerning other emoticons

Whether French courts will align themselves with these latter case law remains to be seen.

Dreyfus & Associés has experts in trademark law, as well as in national, European and international trademark registrations. Dreyfus & Associés is the ideal partner to support you in this process of securing and updating your intellectual property rights.

When one walks around in a museum armed with his beautiful camera or smartphone, it is common for him to want to take photographs of artworks that make one shiver. With our finger on the trigger, we are about to immortalize the masterpiece before our very eyes… But, is it really legal?

By way of illustration, if you take a walk at the Hansen’s secret garden exhibition at the Jacquemard André museum, it is possible to admire the magnificent “Fleurs et fruits” (1909) by painter Henri Matisse. But if you take a closer look, especially under the picture, you will see a “No Photography” sign. How is that possible?

1. The principle of copyright

Copyright consists of two sets of rights:

• Moral rights, perpetual, imprescriptible and inalienable rights, consisting of the right of disclosure, paternity, withdrawal and the right to respect for the artwork;
• Economic rights, consisting of the right of reproduction and the right of representation, which are customarily assigned in the course of business.

Economic rights enable the author or his or her successors, on the event of the death of the author for example, to exploit the artwork. Unlike moral rights, economic rights are limited in time: for the life of the author and, in most cases, for the first 70 years after death, save for some exceptions (as war extension).

2. Independence of media and rights

During his or her lifetime, the author may wish to sell artworks without assigning his or her economic rights. This is where the principle of independence of the tangible property (the medium) and the intangible property (copyright) of the work in question comes into play.

Article L111-3 of the French Intellectual Property Code enlightens us in these words:“The intangible property defined by article L111-1 is independent of the ownership of the material object”. In other words, the purchaser of the painting, for example, is not invested with any of the moral and property rights, despite the acquisition. The author or the rights-holders, on the other hand, will not be able to demand from the owner of the material object that this object should be made available to them for the exercise of these rights. On the other hand, in the event of known abuse by the owner of the medium, preventing the exercise of the right of disclosure, the Regional Court may take appropriate measures.

It is on this principle, for example, that museums and all kind of artwork owners, have in reality only the ownership of the tangible support, and can prohibit visitors, at the request of the author or rightful owners, and in all legality, from photographing the artwork, under cover of the reproduction right. To take our example, Henri Matisse having died in 1954, his works will be free of rights in… 2024! Seventy years after the author’s death. But beware, we must not forget that moral rights are imprescriptible and that rights-holders can always avail themselves of them.

The assignment of economic rights must therefore be the subject of a separate agreement, specifying the scope of the rights assigned and the method of remuneration, if any.

Furthermore, article L122-5 of the Intellectual Property Code clearly states that “Once the work has been disclosed, the author cannot prohibit: 9° The reproduction or representation, in whole or in part, of a work of graphic, plastic or architectural art, by written, audiovisual or online press, for the exclusive purpose of immediate information and in direct connection with the latter, provided that the author’s name is clearly indicated. » This is why it is possible to see a museum’s Internet website reproduce the painting in digital format in order to illustrate an exhibition legally… But this is also why we must be careful with the images offered by the Google search engine for example, since most of the photos in Google Images are used in violation of copyright, and particularly the right of reproduction. Thus, acquiring a painting does not mean that you own the copyright!

Dreyfus & associés and its litigation department can help you in your willingness to assign your copyrights, but also to enforce them in case of litigation.

Intellectual Property Code Article L.711-4 prohibits adoption of a sign that infringes on prior rights, especially business and trade names that are well known within the country if there is a likelihood of confusion in the mind of the public. By judgement dated July 8, 2016, Marseille’s Tribunal de Grande Instance extended the prohibition to trademarks and domain names that infringe, not only on such names but on their acronyms (TGI Marseille, 1e ch. Civ., 8 juillet 2016, n° 14/06485, Association ACFA c/ Société ACFA Multimédia inédit). This extension is justified by the presence of the French adverb translating roughly to “mainly” or “namely” in said article, emphasizing the non-exhaustive nature of the list that follows. Indeed, emphasis must be placed on the existence of a likelihood of confusion on the part of the public, a notion that merits examination on a case by case basis and per the facts of each case.

In this particular case, we have on the one hand the Association de Création et de Formation Audiovisuelle (ACFA): registered with the Rhône Prefecture since 1991, it is registrant of the domain name “acfa-cinema.com”  used since 2009 and called by its acronym, ACFA, by everybody in contact with it. On the other hand we have SAS ACFA Multimedia: it is a school that offers training in trades of sound and image, registered with the Montpellier Trade and Companies Register in 2000, owner of the French trademarks “ACFA” and “ACFA CINE” registered in 2011 and 2012 and registrant of the domain names “acfacine.com” and “acfa-cine.com”. Following failure of the lawsuit filed by the latter in which the company tried to oppose its’ trademarks to the association for procedural reasons, the association sued the company and requested cancellation of their trademarks due to invalidity. They also requested transfer of the two domain names over to them. The court upheld the claim on the basis of Article L711-4 of the Intellectual Property Code and granted the award of damages. The judges revealed the likelihood of confusion between both entities which both provide training in the same field, and, unlike the association, the company had no explanation as to the origin of the acronym “ACFA”. Hence the association’s acronym has gained the value of a known commercial mark through use, and constitutes a protected prior right.

Dreyfus & associés is specialized in the field of trademarks law. Its team can provide you with th help and advice you need to file for your trademarks applications.

Darkweb… This is a term that gives rise to distrust. In order to understand this notion and the issues that arise from the existence of domain names, it is necessary to define the Internet in a concise way.

1. What is Darkweb?

In order to best understand how this fabric of computer networks works, most authors present the World Wide Web System in the form of an iceberg with the emerging part corresponding to the Surface web and the immersed part corresponding to the Deep Web. At the very base of the iceberg is the Darkweb. The difference between Deepweb and Surface Web is in the intervention of an indexing robot (crawler). In other words, if we cannot find bank details on the web, it is because these pages are not indexed.

However, some sites are specifically created to escape from any referencing: they are integrated into the deep web but are what is called the Darkweb. This word allows to set the tone: The Darkweb brings together all the anonymous darknets networks, and is only accessible on the Deepweb. By their nature they are most often used for illegal purposes.

2. The Domain name architecture

An Internet address consists of a “www” (World Wide Web) prefix and a domain name. This domain name is itself composed of a string of characters and an extension (gTLDs, corresponding to the generic top-level domains, ccTLD corresponding to the national top-level domains, new gTLDs corresponding to the new Generic top-level extensions launched by ICANN a few years ago). The domain name is registered via a registrar or a registry that issues the assignment if it is available. Registrars are in contract with ICANN, which oversees the rules for naming and managing domain names.

3. Darkweb and domain names: what relationship?

To be able to penetrate the Darkweb, it is necessary to use anonymizing software, the most known being Tor. On the Darkweb, there are no traditional URLs, based on “www”, understandable domain names, and Tld in “.com”, “.fr”, etc. On the Darkweb, the addresses of the Internet sites are composed of mixed numbers and letters, and of unknown Tld. For example, the Tld of Tor is the “.onion”… thus far from the extensions controlled by ICANN. This is called open roots.

In order to understand, one must bear in mind that there is governance set up by ICANN. The latter manages the roots of the Internet and administers digital resources, such as IP addresses and domain names. Willingness to emancipate, lower cost, fight against the shortage of domain names, all these factors are considered in the evolution of open roots and their democratization. It is on this principle that the Darkweb is based.

Around these particular Tld there are disputes. Indeed, if the existence of this type of roots does not taint the root of ICANN, this coexistence can sometimes be difficult as evidenced by two disputes against ICANN by the companies Name.Space and Image Online Design which market extensions based on open roots.

These two disputes arose when ICANN launched the new Tld program, more commonly referred to as “new gTLDs”. In this case, Name.Space and Image Online Design had been proposing domain names since the mid-90s, particularly in the “.web” Tld. In the year 2000, these two companies applied for these extensions to ICANN, without success. However, later, ICANN did not object to a request for a new “.web” extension in its new  Tld program, knowing full well that these Tld were marketed by the aforementioned companies. These two companies have therefore brought a lawsuit in the United States against ICANN for trademark infringement, illicit agreement, unfair Competition and criminal acts.

The use of this type of so-called open roots deserves full attention and presents itself as an alternative solution to the system set up by ICANN. However, the difficulties that they can create should not be neglected.

4. What are the possible developments?

In 2015, the Internet Engineering Task Force (IETF) designated the “.onion” Tld as a special-purpose, first-level domain name used to implement an anonymous service with strong privacy characteristics. A first-level reserved domain is a top-level domain that is not intended for use in the Internet domain name (DNS) system, but is reserved for other purposes. Therefore, ICANN does not administer these special-purpose first-level Tld.

The Tor project worked with Facebook to achieve this recognition, as well as the Tlds in “.example”, “.invalid”, “.localhost” or “.test”. It is also an important step. However, and as with other special domain names, the “.onion” will not be able to become a top-level domain name sold by ICANN.

Thanks to the decisions made by the organizations for Internet regulation, “.onion” sites are now considered to be existing. In addition, they will be able to offer better security to their users more easily. Thus, SSL/TLS certificates can be issued by an authority for “.onion” sites in order to put a security protocol in place so as to ensure the legitimate identity of a site, but also to allow the encryption of their contents.

There is thus a willingness of emancipation from the negative shackles represented by the Darkweb in the eyes of the Cybernaut community, demystifying the notion.

The Darkweb also allows, thanks to the progress of the Tor project and the IETF, to secure a website that one does not wish to reference. It also means that we do not necessarily only find illegal sites on these anonymous networks, but that Darkweb is used as a means of confidentiality.

On September 29^th, 2017, three new decrees in France were taken under The Law for a Digital Republic after a broad consultation within the conseil national de la consommation (National Consumer Council, CNC) with the representatives of the concerned companies. They clarify the practical modalities of new obligations of transparency and loyalty for online platform operators. In other words, consumers will have access to clearer, objective and transparent information.

The three decrees concerned are as follows:

• Decree No. 2017-1434 of 29 September 2017 (which will entry into force on January 1^st, 2018) concerning the information provisions of digital platform operators
• Decree No. 2017-1436 of 29 September 2017 (which will entry into force on January 1^st, 2018) concerning the information provisions for consumer online notices
• Decree No. 2017-1435 of 29 September 2017 (which will entry into force on January 1^st, 2018) concerning the establishment of a threshold of connections from which online platform operators develop and disseminate good practices in order to strengthen clarity and transparency of information transmitted to consumers.

1. What is an online platform? Who is affected by these obligations?

Article L111-7 of the French Consumer Code provides that “an online platform operator shall be any natural or legal person proposing, on a professional or remunerated basis, a communication service to the on-line public based on:

1° Classification or referencing, by means of computer algorithms, of content, goods or services proposed or put on line by third parties;

2° or the linking of several parties regarding the sale of a property, the provision of a service or the exchange or sharing of content, property or service. »

These provisions therefore aim for marketplaces such as Amazon or eBay, sites of price comparators, goods or services, search engines, social networks or platforms that connect  professionals and consumers or l consumers between them.

2. What exactly is this?

Platforms that value content, goods or services offered by third parties, in the image of search engines, social networks or comparator sites, must specify the criteria for referencing and ranking that they use. The concerned information are the conditions for referencing and dereferencing content and offers, the criteria for the default classification of content and offers, or the existence of a capital link or remuneration between the said platform and the companies referenced. This for example allows one to fully know the influence exerted on classification or referencing.

Sites which publish consumer advisories such as TripAdvisor, for example, will need to clarify whether these published notices have been verified and by which method. The online notice is defined as the expression of a consumer’s opinion on his or her consumption experience. The sites concerned will therefore have to detail or not the existence of a procedure of control, the date of publication of each notice and the classification criteria of the latter. In an easily accessible section, they should specify whether or not there is a financial consideration provided in exchange for the filing of notices and the maximum period for publication and retention of a notice.

Finally marketplaces will have to provide consumers with essential information that can have an impact on the choices: the quality of the seller, in particular the professional or consumer status, the description of the service of connection and the price of this service where appropriate, the existence of a right of withdrawal, a legal guarantee of conformity or the method of settling disputes, which are often numerous on such sites and which sometimes discourage consumers by their lack of visibility.

By the end of 2018, the most visited platforms (number of monthly connections greater than 5 million of unique visitors) will be required to follow good practices in terms of loyalty, transparency and clarity. These good practices will be available online by the visitors. These provisions shall apply as from  January 1^st, 2019. For companies above the threshold, they will have six months to comply.

The topics must be well identified, directly and easily accessible from all the pages of the website. In the case of collaborative platforms, they must be accessible without the user needing to identify themselves.

Finally, these decrees show a willingness to protect the consumer, particularly in cases where platforms, usually seen as neutral, are sometimes paid by companies (for referencing, classification, opinions, etc.). It is a step towards transparency for global players in trade and consumption.

In this regard, Bruno Lemaire said that “platforms play a major role in the digital economy, and are a point of access to many online services for all French people.” These decrees will enable consumers to access clear, objective and transparent information, in order to build confidence in the information presented on these platforms. The objective is to better balance the relationships between platforms and users.

Dreyfus assist you in your compliance procedures thanks to its team of specialized jurists.

After several months of work begun in March 2016, the “connected vehicles and personal data” pack released last October by the CNIL constitutes a real “toolbox” for professionals in the automotive sector.

The compliance pack issue

Thanks to this system of reference, professionals in the automotive sector will be able to integrate personal data protection for their users, and at the same time, comply with the General Data Protection Regulation (GDPR), which will be applicable from May 25^th, 2018.

Developed by the CNIL in consultation with both public and private actors of the sector, this pack applies to vehicles equipped with a communication system which communicates with the exterior. If this communication system provides users with a multitude of new services, their implementation imposes a considerable collection of data on the driver and its interaction with the road environment.

By this toolkit, the CNIL seeks to sensitize professionals of the sector on the personal character of certain collected data, for which special protection is required under the Computer and Freedom Law of January 6^th, 1978 and RGPD.

Personal data collection

This pack intervenes with a protection objective, since these personal data collections, defined as any information identifying a natural person, are likely to impair the privacy of these connected vehicles’ users. Indeed, there are many risks associated with vehicle connectivity. For example, the geolocation data collected reveals the users’ habits, and could induce malicious people to enter their homes in their absences.

Towards a responsible use of data

In order to take greater responsibility with data use, the CNIL differentiated three options in its pack for which guidelines are offered to professionals although the first is strongly encouraged by the Commission:

• The data collected in the vehicle shall remain in it without transmission to the service provider;
• The data collected in the vehicle is transmitted to the exterior to provide a service to the person concerned;
• The data is transmitted to the exterior to trigger an automatic action in the vehicle.

By encouraging manufacturers to integrate the protection of personal data of connected vehicles’ users that produce an average of 1 billion bytes of data per day, this guide ensures transparency and control of data by the user.

The future adaptation of the CNIL pack to autonomous vehicles

If this text anticipates the future of the automotive sector, it is intended to be modified in the future in order to adapt to autonomous cars that will produce 30 000 times more bytes of data per day according to Le Monde (a French newspaper). This is because, in the long run, autonomous vehicles will need to capture, analyze, understand its environment constantly, thus becoming truly dependent on the data collected.

If the pack is applicable today expressly to connected vehicles, two of its obligations significantly impact the development of autonomous vehicles: data protection from the conception of the product governs by the principle of Privacy by Design and default data protection, framed by the principle of Security by default.

The design of “Ethics by Design” vehicles in response to the objective of protecting users ‘ privacy

Indeed, serious consequences on the privacy of users can result from the use of these connected vehicles. Thus, in order to avoid breaches of the principle of protection of privacy and to gain the confidence of users in the use of these new technologies, ethical questions arise and new commitments are necessary. Among these commitments, car manufacturers and suppliers of artificial intelligence platforms could be bound by the obligation to design vehicles considered “Ethics by Design”.

Having a vocation to evolve according to the application of the GDPR, and according to the progress of the technology, we recommend you to initiate compliance as soon as possible. Endowed with a department dedicated to the issues of personal data and a department with technical skills, Dreyfus and Associates is the ideal partner to assist you in this process of securing the collected data.