On 12 July 2016, the European Commission decided on a new data transfer mechanism to the US. The Privacy Shield replaces the former Safe Harbor agreement that was invalidated by the Court of Justice of the European Union ("CJEU") in its Schrems decision (C-362/14) in October 2015. Briefly, the Privacy Shield is a self-certification system for US companies willing to receive European data. When the receiving company is Privacy Shield certified, no other transfer mechanisms, such as standard contractual clauses, are necessary.
US companies willing to join the Privacy Shield should first assess their compatibility with Privacy Shield requirements internally. After the audition, a company can file an online notification to the US Department of Commerce. Certifications have been accepted from 1 August 2016 onwards. The Privacy Shield will not affect other transfer mechanisms still available, and companies should assess which one best suits their needs.
The companies processing European personal data in the US should respect the Privacy Shield principles that represent the core values embodied in European data protection law. The seven principles are:
- Data Integrity and Purpose Limitation
- Recourse, Enforcement and Liability
- Accountability for Onward Transfer
In addition to the principles, and related to the recourse, enforcement and liability principle, the companies transferring data based on the Privacy Shield are also responsible for setting up sufficient recourse mechanisms for data subjects.
However, there has already been criticism of the Privacy Shield for not properly addressing the issue of large-scale surveillance by the US intelligence, saying that the assurances are not solid enough and, in practice, nothing has changed from the Safe Harbor. It is thus possible that the validity Privacy Shield will end up in the CJEU as a precedent. Due to these concerns, it is worth assessing whether the Privacy Shield is the most optimal solution for a company to transfer data to the US, or whether other measures would be better suitable. Nevertheless, it is worth remembering that Privacy Shield is a completely valid legal system from now on – and can be relied on for now – despite of the public discussion.
In the judgment GS Media (C-160/15) of 8 September 2016, the Court of Justice of the European Union ("CJEU") assessed the interpretation of Article 3(1) of Directive 2001/29/EC (the "Information Society Directive") in the context of hyperlinking to works protected by copyright and published illegally. The CJEU found that linking to unauthorized content is not communication to the public unless the party posting the link seeks financial gain and has knowledge that the content has been published without the author's consent. Said ruling differs from CJEU's earlier case-law Svensson (C-466/12) andBestWater (C-348/13), as said cases concerned hyperlinking to content published with the rights holder's consent.
The ruling was given in a dispute between GS Media BV and Sanoma Media Netherlands BV, Playboy Enterprises International Inc. and Britt Geertruida Dekker. GS Media operates the website GeenStijl.nl where hyperlinks were posted to other websites with photographs not yet published by the rights holders. The rights holders demanded GS Media to remove the links from the website, but it refused their request. Eventually the case reached the Dutch Supreme Court, which referred to the CJEU for a preliminary ruling on whether the posting of a hyperlink to protected works freely available on another website without the copyright holder's consent constitutes an act of communication to the public.
In its ruling, the CJEU reminded that the concept requires individual assessment. The CJEU held that it is to be determined whether the links are provided for profit and by a person who knew or could reasonably have known that the posted hyperlink leads to illegally published content. Further, the CJEU held that if the hyperlinks are provided for financial gain, it is expected that the person ensures that the work is not illegally published, i.e., knowledge is presumed. In this case it was undisputed that GS Media provided the hyperlinks for profit. Moreover, it was in full knowledge of the illegality of the publication and therefore effected an act of communication to the public.
In its judgment in the case Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (C-484/14) of 15 September 2016, the Court of Justice of the European Union ("CJEU") clarified the interpretation of Article 12(1) of Directive 2000/31/EC (the "E-Commerce Directive") as regards the liability of a free wireless local area network (Wi-Fi) provider for the use by a third party.
Mc Fadden runs a store for lighting and sound systems and offers his customers free access to a Wi-Fi network along with his business. In 2010, a musical work to which Sony owns the copyright was made available for download by a third party by means of the Wi-Fi provided by Mc Fadden, resulting in court proceedings between Mc Fadden and Sony. The first court to hear the case found that Mc Fadden was directly liable for the infringement, granted an injunction against him and ordered him to pay damages. Mc Fadden appealed the decision to the Regional Court, Munich I, Germany (Landgericht München I), which referred to the CJEU with several questions relating to the liability of so-called "intermediaries" for intellectual property infringement.
The CJEU held that the provider of a free Wi-Fi cannot be held liable for a third party copyright infringement provided that the conditions under Article 12(1) of the E-Commerce Directive are met, i.e. that the Wi-Fi provider does not initiate the transmission, does not select the receiver of the transmission, and does not select or modify the information contained in the transmission. The CJEU therefore ruled that copyright owners cannot claim compensation from a Wi-Fi provider in the event the network has been used by a third party to violate their rights. However, the CJEU held that Article 12(1) does not preclude preventing the continuation of the infringement by granting an injunction which requires the Wi-Fi provider to password protect the network and to ensure that users must register to gain access.
In the ruling Tommy Hilfiger Licensing LLC and Others (C-494/15) of 7 July 2016, the Court of Justice of the European Union (“CJEU”) issued a new interpretation of the concept of intermediary in Article 11 of Directive 2004/48/EC (the “Enforcement Directive”) stating that a company letting or subletting physical sales areas in a market hall can be considered an intermediary within the meaning of the Enforcement Directive and that injunctive orders can be imposed on such intermediary. The dispute from which the interpretation arose was between the trademark rights holders Tommy Hilfiger Licensing LLC, Urban Trends Trading BV, Rado Uhren AG, Facton Kft., Lacoste SA and Burberry Ltd and the Czech companyDelta Center that operates in the Prague market halls and sublets sales areas to vendors who were found to have infringed the rights holders’ trademarks by selling counterfeit products.
The Enforcement Directive allows trademark holders to bring an action against intermediaries whose services are used by a third party to infringe their trademarks. In the case-at-hand, brought to the court by the rights holders, the Supreme Court of Czech Republic requested the CJEU for a preliminary ruling on the interpretation of the Enforcement Directive. In its ruling, the CJEU confirmed the national court’s jurisdiction to impose an injunctive order on intermediaries such as Delta Center under the same conditions as those set out for the operators of online marketplaces in the earlier L’Oréal v eBay (C-324/09) ruling. Thus, the CJEU held that the scope of the Enforcement Directive is not limited to the online environment alone.
The CJEU held that an intermediary may be obligated to take measures which contribute to avoiding new infringements of the same nature by the same vendor from taking place. However, the injunctions imposed on the intermediary must be equitable and proportionate. They must not therefore be excessively expensive or create barriers to legitimate trade, nor can the intermediary be required to exercise general and permanent oversight over its customers.
In its recent ruling Genentech v Hoechst and Sanofi-Aventis (C-567/14) of 7 July 2016, the Court of Justice of the European Union (“CJEU”) ruled on whether demanding license fees in the event of the revocation or non-infringement of the licensed patent is a violation of EU competition law.
In the case, Genentech Inc. had entered into a patent license agreement with Hoechst GmbH's predecessor in 1992 for the use of a human cytomegalovirus enhancer. The licensed technology was the subject of a European Patent which was revoked in 1999. The license agreement stipulated that Genentech was liable to pay a one-off fee, an annual fixed fee and a running royalty, and that the parties were obligated to refer any disputes arising from the license agreement to arbitration. Genentech never paid any royalties, which prompted Hoechst and its parent company Sanofi-Aventis to request information regarding Genentech's products in 2008. Genentech then terminated the license agreement.
Hoechst launched arbitration proceedings, and the sole arbitrator found Genentech liable to pay running royalties for the sale of Rituxan, a cancer drug, regardless of the fact that the patent had been revoked. The arbitrator held that Genentech had benefited from the license agreement, as the purpose of the agreement was to avoid patent litigation. Genentech sought annulment of the arbitration award from the Court of Appeal in Paris, which referred the matter to the CJEU.
In line with the sole arbitrator's opinion, the CJEU stated that royalty is the price to be paid for the guarantee that the licensor will not exercise its industrial-property rights. The CJEU ruled that EU competition law ¬– specifically Article 101 of the Treaty on the Functioning of the European Union – does not prevent licensors from demanding royalties for the entire duration of a license agreement in the event of the revocation or non-infringement of the licensed patent, provided that the licensee is free to terminate the license agreement by giving reasonable notice.
The Court of Justice of the European Union ("CJEU") ruled on 21 April 2016 on the question of jurisdiction over a copyright-based compensation claim in a dispute between an Austrian copyright collecting society and the online conglomerate Amazon (case C-572/14). In its judgment of 21 April 2016, the CJEU held that a compensation claim arising under national law is considered a "matter relating to tort, delict or quasi-delict" under Article 5(3) of Regulation (EC) No 44/2001 (the "Brussels I Regulation"). It follows that a national court could have special jurisdiction over a claim brought against a defendant domiciled in another jurisdiction, provided that the harmful event, or, in this case, the failure to collect compensation owed, occurred or might occur in the jurisdiction of the national court (which was left for the national court to decide).
The collecting society's claim was based on national provisions implementing a "private copying levy", collected from those who make copying equipment available to private users. The CJEU was to consider whether a national court could have jurisdiction over a claim for unpaid levies brought against entities domiciled in different jurisdictions. The CJEU started out by exploring whether the claim constituted a "matter relating to contract" (the polar opposite of a matter relating to tort, delict or quasi-delict), concluding in the negative, as Amazon had not freely consented to the levies being claimed. Instead, the failure to collect the levies was deemed a "harmful event" in the meaning of the Brussels I Regulation. Thus, the CJEU concluded that the corresponding claim was, in fact, a matter relating to tort, delict or quasi-delict. However, for determining whether it had jurisdiction, the national court would further have to consider whether the effects of the event occurred or might occur in its jurisdiction.
For copyright holders (and collecting societies), the CJEU's ruling is good news, as it reduces the number of circumstances in which they would have to sue an enterprise on its home turf in order to collect the compensation owed under the laws of another Member State. Conversely, content users (or, as here, equipment merchants) are less likely to be enthused, as the CJEU's interpretation further opens them up to litigation in foreign jurisdictions.
The Swedish Supreme Court has ruled that the media player contained in iPhones, enabling the user to make copies of films and music for private use, renders the device especially suitable for counterfeiting within the meaning of Article 26 k of the Act on Copyright in Literary and Artistic Works (1960:729). This conclusion was reached in the Supreme Court's decision (T 2760-15) of 10 June 2016 in a case between Telia Company (previously TeliaSonera) and Copyswede. Copyswede is an economic association that represents artists in relation to common copyright issues.
Importers of products that are considered especially suitable for private copying of sounds and moving images are required to pay remuneration to the rights holders. The purpose of this levy is to provide compensation to rights holders for the loss of revenues resulting from counterfeiting activities.
Telia Company argued that the main function of mobile phones is to make and receive calls and messages, claiming that the phones are therefore not especially suitable for private copying. Copyswede, in turn, contended that the iPod Touch, another product made by Apple and previously recognized as especially suitable for making counterfeit copies, also allows users to send and receive text messages but is still subject to the levy.
The Supreme Court held that the decisive criteria is whether the device is specifically made for or if it has features that makes it highly suitable for private copying and whether it can be presumed that the device will be used for such purposes to an extent that cannot be regarded as insignificant. Technical capacity, user friendliness and availability for consumers, including aspects such as pricing, are taken into account. The Court concluded that iPhones have all these properties and can thus be seen as especially suitable for private copying.
In Finland the issue of whether certain devices are in the scope of the private copying levy or not has been addressed with the 2015 amendment to the Finnish Copyright Act (404/1961). One of the reasons behind the amendment was that the amount of the levy had decreased swiftly in the recent years due to the popularity of e.g. streaming services. Now, the State is responsible for paying the compensation to the authors for the reproduction of a work for private use. The compensation is allocated as a part of the State budget, and the amount of compensation is settled at a level which can be considered a fair compensation for the reproduction of a work for private use.
The Finnish Market Court issued a judgment (MAO:234/16) on 22 April 2016 in a bus transportation related trademark and trade name dispute. The case concerned the plaintiff OnniBus.com Oy's lawsuit against three bus companies (Mikko Rindell Oy, Tilausajot Mennään Bussilla Oy and Keskimatkat Oy). The defendants had earlier operated under the trademark ONNIBUS and, after having parted ways with the plaintiff, had started using the trademark OnniExpress in May 2014. Around the same time, the Finnish Patent and Registration Office ("PRO") had approved the registration of the trademark OnniExpress for bus transportation services, despite the existence of the plaintiff's earlier Finnish trademark registration ONNIBUS for identical services.
The Market Court found that the plaintiff's trademark enjoyed a reputation since May 2014, that there existed a likelihood of confusion in the target group between the two trademarks. The Court found that due to the confusion, the use of OnniExpress infringed the plaintiff's earlier trademark ONNIBUS. The judgment imposed several obligations for the defendants; for instance, they were each ordered to pay the plaintiff reasonable compensations (i.e. estimates of reasonable license fees) between ca. EUR 2.500-12.000, to jointly compensate the plaintiff's damages in the amount of EUR 40.000 for the misappropriation of goodwill as well as to partially cover the plaintiff's legal fees of EUR 80.000.
In parallel trademark opposition proceedings, the trademark OnniExpress was revoked by the PRO in September 2015 due to OnniBus.com Oy having been able to prove that ONNIBUS enjoyed a reputation and that the use of the trademark OnniExpress had harmed the reputation and distinctive character of ONNIBUS. PRO did not find there existed a likelihood of confusion in the target group between the trademarks due to the differences between the trademarks. However, the Market Court came to the opposite conclusion and found that a likelihood of confusion existed.
In case (MAO:325/16), the Finnish Market Court granted a precautionary measure under the Act on Safeguarding Evidence in Civil Matters concerning Intellectual Property Rights (344/2000). The applicant, A Oy, had requested the Court to grant an ex parte precautionary measure based on the fact that B Oy's utitlity model publication included a drawing that was identical to a drawing the plaintiff had confidentially provided to a third party, X, in 2010. The drawing depicted an intermediate version of A Oy's product, a version which was never made public or produced.
The Court found it probable that B Oy had unjustifiably used or revealed A Oy's technical models within the meaning of section 4 subsection 4 of the Unfair Business Practices Act (1061/1978). The Court ordered the bailiff to investigate and copy B Oy's e-mail correspondence with X from the time between the year 2010 and the date of B Oy's utility model application in 2012. However, the Court did not grant A Oy's request to seize B Oy's related physical documentation or to disclose the seized material to the applicant.
In three recent cases (MAO:358/16, MAO:359/16 and MAO:360/16), Volkswagen AG requested the Market Court to prohibit three car rim retailers, Rengas Turku Oy, vannetukku.fi Oy and OEMPLUS Oy, from selling rims and rim hubs that infringe Volkswagen's design rights. After the service of Volkswagen's lawsuit, two of the retailers reported that they had removed the infringing products from their offerings.
The third retailer, vannetukku.fi, invoked its own community design relating to the infringing rims and argued that due to the presumption of validity set forth in Article 85(1) of the Community Designs Regulation (Council Regulation (EC) No 6/2002), granting a precautionary measure against a registered community design is not possible. However, the Court held that the presumption of validity is not relevant in this context since it relates to the allegedly infringed right, i.e. the plaintiff's design right. Consequently, the Court imposed a prohibition on all three retailers, enforced with conditional fines.
However, in all three cases the Court refused Volkswagen's additional requests to seize any infringing products and accounting records. As to the latter, the Court held that since a statutory obligation to retain accounting records is set forth in the Accounting Act (1336/1997), it is unlikely that such material would be destroyed.
In another design right case (MAO:259/16) concerning children's snow boots, F-Safety Oy, who was the manufacturer of Angry Birds branded snow boots, requested the Market Court to declare that its products did not infringe another manufacturer's, Kuomiokoski Oy's, design rights. The matter was brought to the Market Court by F-Safety after Kuomiokoski had repeatedly made infringement claims against F-Safety despite of it contesting the claims.
The Court found that regardless of the fact that the shape of F-Safety's Angry Birds snow boots and Kuomiokoski's community design contain similarities, taking into account all relevant factors, such as the partial constraints to the designer's freedom and the interconnection between the shape and the use, the informed user is left with a different overall impression of the compared products. Thus the Court held that F-Safety's products did not infringe Kuomiokoski's design rights.
The Finnish Supreme Administrative Court has in its decision KHO:2016:80 of 25 May 2016 taken a stand on the obligations the rule of law places on administrative authorities. Accordingly, the rule of law as set forth in section 2, subsection 3 of the Finnish Constitution means that the authority must, in addition to ensuring in its own decision-making that a legally correct outcome is attained, also during appeal proceedings inform the Court both of matters that favor and counter its decision subject to appeal.
The Finnish Medicines Agency ("FIMEA") had in its decision dated 10 March 2008 classified Vitabalans Oy’s glucosamin product as a medicinal product, the sale and marketing of which requires a separate marketing authorization. Vitabalans appealed the decision on the basis that the correct classification would be a dietary supplement. Its appeals were rejected both by the Administrative and the Supreme Administrative Court.
Vitabalans subsequently on 11 September 2013 applied for annulment of the decision of the Supreme Administrative Court. After a week from the filing of the annulment request, FIMEA changed its line of interpretation and concluded that scientific data did not support the classification of glucosamine products as medicinal products. FIMEA also subsequently announced that Vitabalans' product could remain on the market as a dietary supplement. Vitabalans invoked this change in FIMEA's position as further grounds for its annulment request, further requesting that FIMEA be ordered to reimburse its legal costs.
The Supreme Administrative Court concluded that FIMEA had in 2012 at its possession data that supported the classification of glucosamine products as dietary supplements as opposed to medicinal products. As an authority, it should have during the appeal proceedings submitted this data to the Court even though it countered FIMEA's own decision subject to appeal. Due to FIMEA's neglect, the Supreme Administrative Court did not have all the relevant information at its disposal when making its decision.
FIMEA was ordered to reimburse a part of Vitabalans' legal costs. However, as the decision subject to annulment request had not been enforced and FIMEA had since amended its decision, no damage had been caused to Vitabalans. Its annulment request was therefore rejected.
Marketing and Consumer
The Swedish Market Court Assesses the Liability for Unfair Marketing in Four Cases
The Swedish Market Court has delivered four judgments concerning the risk of confusion between two signs; the responsibility for marketing on a website; reputation leeching; and unfair marketing in general.
In the ruling MD 2016:7 of 28 April 2016, the Market Court found that a certain décor used by an individual in his taxi business containing the words "TAXI" and "STOCKHOLM" could be easily confused with the décor used by Taxi Trafikförening u.p.a. ("Taxi Stockholm"), another trader within the taxi business. The Market Court emphasized that the concerned décor used by Taxi Stockholm had become well known within the relevant public and that a consumer hailing a taxi on the street would have difficulty noticing the difference between the individual's taxi business and Taxi Stockholm.
Concerning the responsibility for marketing, the Market Court found in an interim judgment MD 2016:8of 27 May 2016 between Mecenat AB and Studentkortet i Sverige AB that where the owner of a website makes space available on its website for marketing by third parties, the website owner has a responsibility to review the marketing before it is published, and is thus also responsible for the content.
The beer manufacturer Spendrups Bryggeriaktiebolag claimed in case MD 2016:11 that Galatea AB's marketing of its beer product ARBOGA ÖL was unfair since it could be easily confused with, and was reputation leeching on Spendrups' beer product MARIESTAD EXPORT. In its judgment of 1 July 2016, the Market Court dismissed Spendrups' claims, since it found that the most distinctive feature of the two beer products were their respective names – ARBOGA ÖL and MARIESTAD EXPORT – and there was no risk that these could be confused or that ARBOGA ÖL could be considered to be reputation leeching on MARIESTADS EXPORT.
In the judgment MD 2016:12 of 15 August 2016 between Intervet AB and Nord Vacc Läkemedel AB, the Market Court prohibited Intervet AB from making certain statements concerning the quality and properties of pig vaccines which it marketed. Before the trial, Intervet AB had admitted that its marketing was unfair, however, given the relevant marketing regulation, the Market Court had to try the case regardless of this. As a result, Intervet AB did not produce any evidence to back up the truth of its statements, and the Market Court found the statements to be misleading and unfair marketing.
The Swedish Market Court has ruled in favor of the Consumer Ombudsman in three cases regarding consumer protection rights, more specifically concerning the provision of correct information, unsolicited marketing and the right to regret.
In the case MD 2016:10 between the Consumer Ombudsman and A.B., the defendant had sought damages from a consumer for breach of contract even though its services were marketed as free of charge and no terms of the contract had been provided when the offer was made. In its judgment of 17 June 2016, the Market Court ordered A.B. to stop claiming damages from consumers based on contracts that do not encompass any price and to clearly provide information on the terms of its services.
The Market Court ordered a company marketing itself through phone calls even though consumers had expressly objected to receiving such marketing to stop these activities in its judgment MD 2016:9 of 3 June 2016. In the case between the Consumer Ombudsman and Sumer AB, the defendant was also held liable for omitting to provide material information regarding the nature of the services and the consumer's right to regret.
In case MD 2016:13, delivered on 15 August 2016, the Market Court held that the exception to the right to regret, applicable for cultural and sports events and similar leisure activities offered for a certain period of time, entails the assessment of whether the exercise of the right to regret would have disproportionate economic consequences for the company offering the services. In the case, Malmö Dansakademi AB had failed to prove that the use of the right to regret would incur financial hardship to it, and was thus obliged to provide information on this consumer right.
Media and Entertainment
The Court of Justice of the European Union ("CJEU") has further specified the interpretation of "communication to the public" in accordance with Article 3(1) of Directive 2001/29/EC (the "Copyright Directive") and Article 8(2) of Directive 2006/115/EC (the "Rental Directive") in the recent case Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH ("Reha") v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV ("GEMA", the German copyright administration collective) (C-117/15). Reha operates a rehabilitation center, which gives post-operative care to accident victims. Reha had three rooms that had televisions displaying television programs, for which it had not requested permission from GEMA.
The Court noted that "communication to the public" has to be interpreted broadly, even though it had been ruled out in a similar case involving a dentist's office. In that instance, the CJEU ruled that the number of patients in a dentist's office is not large and is, as such, insignificant. Dental patients also do not give any importance to such broadcasts and they are not "persons in general." According to the CJEU, the difference with the case at hand is that the patients in Reha's premises are "persons in general" and therefore Reha falls more in line with hotel and spa establishments.
Another significant difference was that multiple patients were able to enjoy the broadcast simultaneously and in succession in several rooms. The broadcasting of the television programs increased the facility's attractiveness, giving it a competitive advantage. Finally, the Court added that, in principle, the patients cannot enjoy said broadcasts without the actions of Reha and that the patients were not taken into account when the authorization for making the work available was originally done.
The ruling widens the scope of businesses whose actions could be interpreted as communicating to the public. The questions businesses should consider in the future are, for example, how many persons are enjoying the broadcast, are they "persons in general" and does broadcasting the television programs make the business more attractive, giving it a competitive advantage.
The Finnish Supreme Administrative Court overruled four decisions (KHO:2016:112) by the Finnish Communications Regulatory Authority (FICORA) on 29 July 2016. The Court found that given their scope and combined effect, the decisions were not rendered by addressing each matter individually as provided for in section 73 subsection 4 of the Information Society Code (2014/917). FICORA's overruled decisions were given to four communications companies of significant market power, i.e. DNA Oy, Elisa Oyj, Anvia Telecom Oy and Lounea Oy concerning maximum pricing of local loops. Local loops are parts of the telecommunications network which are used for providing the service to end customers. The significant market power companies can be obligated to lease the local loops to their competitors for certain maximum prices.
The Finnish Government has on 18 August 2016 issued the Government Bill 119/2016 on the Act on Collective Management of Copyright in order to implement Directive 2014/26/EU on collective rights management and multi-territorial licensing of rights in musical works for online uses. As there is no existing legislation on the collective management of copyright in Finland, the new law will be issued in addition to amendments to the existing legislation.
The aim of the new law is to promote the openness, transparency and good method of administration in relation to the rights holders as well as users. The matters governed by the new law include, for example, supervision of rights and interests of the rights holders in collective rights management organizations and multi-territorial licensing of rights in musical works for online uses.
Business as Usual in Finnish Legislative Preparations for the Unitary Patent Court
The Government Bill 87/2016 on the Act on the Local Division of the Unitary Patent Court in Finland was discussed at the Finance Committee of the Finnish Parliament on 9 September 2016. The Government Bill was handed over to the Parliament in the spring – that is, before the United Kingdom European Union membership referendum (also known as the Brexit referendum).
The fact that the Finance Committee took up the matter suggests that preparations in Finland for the implementation of the Unitary Patent Court ("UPC") will continue according to plan despite uncertainties caused by the Brexit referendum. This approach aligns with that of the UPC Preparatory Committee, which during the summer stated that "the work dedicated to the technical implementation [of the UPC] should continue to progress as envisaged."
According to current plans, a UPC local division would operate at the Market Court in Helsinki, Finland. The division's working languages would be Finnish, Swedish, and English. More information regarding the implementation of the UPC is expected in the coming months.
The Finnish Electronic Identification Act was amended to correspond with the EU legislation (eIDAS Regulation) on 1 July 2016. The aim of the eIDAS Regulation is to create an internal market for electronic identification. The systems for electronic identification currently employed in Finland are already largely compliant with the eIDAS Regulation. However, one of the changes is that to obtain a strong means of identification, such as online bank identifiers, the applicant will be required to present a passport or an official identity card. In addition, the amendments introduce new obligations for service providers and new identification tools such as electronic seals, time stamps, electronic delivery service and website authentication.
As of 1 September 1 2016, a specialized intellectual property court named the Patent and Market Court has the competence to handle cases regarding intellectual property, and marketing and competition in Sweden. The previous Market Court and the Court of Patent Appeals have ceased to exist and have been replaced by the Patent and Market Court, which is part of the District Court of Stockholm (Sw.Stockholms tingsrätt) and the Patent and Market Appeal Court, which is part of the Svea Court of Appeal (Sw. Svea hovrätt). The courts comprise both legally qualified judges and judges with technical training. In addition, technical and economic experts may be appointed to pass judgment. The composition of the courts varies depending on the nature of the case.
The Court of Justice of the European Union ("CJEU") clarified the meaning of Article 32(3) and 33(2) of Council Regulation (EC) No 6/2002 ("Community Designs Regulation) in the recent case Thomas Philipps GmbH & Co. KG v Grüne Welle Vertriebs GmbH (C-419/15) concerning the right of the licensee to bring proceedings for infringement and claim damages when the license was not entered in the register.
Grüne Welle Vertriebs, as being the exclusive licensee of a registered Community design, had brought an action for design infringement against Thomas Philipps, which was held liable but appealed the decision and claimed that the licensee was not entitled to bring such actions since the license was not entered in the register. The CJEU underlined that when interpreting the EU law, it is necessary to consider not only the wording but also the context and the objectives pursued by the provisions. Consequently, the CJEU ruled that the licensee may bring action for Community design infringement even though the license is not entered in the register. In addition, the licensee can claim damages for its own loss in proceedings for infringement brought by it.