Data Privacy

The Swedish Supreme Administrative Court Denies Permission for Processing Crime-Related Personal Data 

The Swedish Supreme Administrative Court (the "Court") denied the security company Stanley Security AB and the gas station company SusMel AB (the "Companies") the permission to use a technical solution called TankStopp for the purpose of preventing car owners from not paying for gas at service stations. On 16 February 2016, the Court ruled in its judgment (4970-14) that the processing of personal data undertaken by the TankStopp solution was not legal, as the interest secured by processing personal data did not outweigh the registered persons' privacy interest.

The Companies had developed TankStopp to tackle the common problem of car owners fuelling their cars and then not paying for the gas. As such non-payment constitutes a crime under Swedish law, the Tankstopp solution registered personal data relating to car owners committing a crime. For this reason, a permission from the Data Inspection Board was required to process said data. The permission was not granted, the case was appealed, and eventually the case ended up in the Supreme Administrative Court.

The Court stated that TankStopp was planned to be used by a number of companies, and thus the contemplated processing of personal data could have lead to significant infringements of the data subjects' integrity. The processing of crime-related personal data is generally reserved only for authorities in charge of crime prevention. Further, it was probable that TankStopp's register could contain some false entries. Consequently, the Court found that an exception to the rule prohibiting the processing of crime-related personal data could not be made in this case.

This Judgement demonstrates restrictive attitude towards permitting other entities than authorities in charge of crime prevention from processing crime-related personal data. If the desired purpose of processing sensitive personal data can be achieved in other ways than by processing sensitive personal data, such option should be primarily exercised, especially if the personal data in question relates to criminal behavior.

The Legal Documents Concerning the EU-US Privacy Shield Published 

The Commission has on 29 February 2016 published the legal documents that will ultimately put in place and define the contents of the new framework for transfers of personal data between the EU and the US. The publication of the documents represents the most significant development on the field of transatlantic data transfers since the Court of Justice of the European Union ("CJEU") invalidated the Safe Harbor Agreement in its decision Maximillian Schrems v. Data Protection Commissioner (C-362/14) in October 2015. Roschier has published a briefing note discussing the background and the effects of the new EU-US Privacy Shield that was announced on 2 February 2016.

The EU-US Privacy Shield agreement is a welcomed replacement for the Safe Harbor Agreement enabling future transfers of personal data without using more complex personal data transfer mechanisms, such as the standard contractual clauses or binding corporate rules. The Privacy Shield contains principles, to which concerned US companies need to commit, provides data subjects with several means of redress, and contains guarantees given by the US to restrict public authorities' access to European personal data, and also introduces the adoption of an annual review mechanism.

Under the Privacy Shield, the requirements set for companies processing personal data including,inter alia, informational and security-related obligations, as well as the obligation to process personal data in line with the principles of data integrity and purpose limitation, are stricter than they used to be under the Safe Harbor regime. It should be particularly noted that in the future companies will be held accountable for their onward transfers of personal data. In addition, companies are required to safeguard the data subject´s right to access to personal data and the right to make choices on the use his personal data. Furthermore, a data subjects' right to bring complaints is reinforced, and companies must also comply with their recourse, enforcement, and liability-related obligations.

Before the Commission adopts an adequacy decision on the EU-US Privacy Shied, it will consult the Member States, and the Article 29 Working Party will give its opinion on the matter. Meanwhile, the US will make the necessary preparations to adopt the new framework, monitoring and the new Ombudsperson mechanisms. The exact date of entry into force of the Privacy Shield has not made public yet. Until the final approvals to the EU-US Privacy Shield have been given, and the new adequacy decision has been made, companies need to continue to base their data transfers on alternative personal data transfer mechanisms.

CJEU Rules on the Interpretation of the Notion of “Use of a Trademark” Under Article 5(1) of the Trade Marks Directive 

In a recent preliminary ruling (C-179/15) the Court of Justice of the European Union ("CJEU”) assessed the liability for use of a trademark under Article 5(1) of the Trade Marks Directive (2008/95/EC) in the context of online advertisements, which - despite of efforts made - are difficult to remove. The ruling was given in a dispute between Daimler and its formed contracting partner Egÿud Garage centering on the appearance of advertisements referring to the latter as an “authorized Mercedes-Benz dealer”. The CJEU held that under certain conditions an advertiser who initially ordered the advertisements associating it with the protected trademark is no longer liable for the infringements of the trade marks.

Firstly, the CJEU confirmed that publishing an advertisement containing reference to a trademark online constitutes use of that mark by the advertiser who ordered it. As such use was explicitly authorized under a contract between Egÿud Garage and Daimler’s Hungarian subsidiary, the use during the term of the contract had taken place with Daimler’s consent. However, after the termination advertisements suggesting that there was still a contractual link between the companies continued to be distributed online and was identified by search engines despite Egÿud Garage’s actions to have them amended or removed.

In this situation the CJEU noted that an advertiser cannot be held responsible for the acts or omissions of website operators, who publish or maintain advertisements online without its consent or against its express will. Accordingly, it ruled that the appearance ceases to constitute use by the advertiser after it specifically requests for their removal regardless of whether the website operator complies with the request. Even if in these situations the proprietor is not entitled to require the advertiser to remove the advertisements, it may still demand reimbursement for financial benefits obtained or take legal action against the website operators infringing the rights conferred by the trademark.

To conclude, the use of a trademark is no longer attributable to the advertiser after it has withdrawn its consent by requesting the removal of the trademark-infringing advertisements. However, the ruling does not specify the extent of the efforts required from the advertiser.

The EGC: The Coca-Cola Bottle Cannot be Registered a Community Trademark 

The European General Court ("EGC") ruled on 24 February 2016 that the Coca-Cola bottle was not distinctive enough to be registered as a community trademark (T-411-14). The dispute began in 2011 when The Coca-Cola Company applied for a community trademark for the bottle at the Office for Harmonization in the Internal Market ("OHIM"). OHIM dismissed the application on the grounds that it was devoid of distinctive character on basis of Article 7(1)(b) of Regulation No 207/2009. The Coca-Cola Company appealed before the Second Board of Appeal of the OHIM claiming firstly that the relevant public would associate the bottle with the applicant's iconic bottle and that the new bottle should be regarded an evolution of the original bottle. Secondly, the applicant claimed that the bottle had acquired distinctive character through use. The Second Board of Appeal dismissed both claims.

The Coca-Cola Company then brought an action against the decision before the EGC. Firstly, according to the applicant, OHIM failed to consider the mark as a whole. The applicant also claimed that the market for the beverages sector is competitive and even though the bottles may be functional, many bottle shapes are designed to stand out from the crowd. The EGC dismissed the claims as unfounded and stated that the mark is a mere variant of the shape and packaging of the goods concerned. The EGC also found that the competitive circumstances of the sector are not a sufficient factor for rendering a mark distinctive.

Secondly, the applicant claimed that the mark had acquired a distinctive character through use. The EGC found that the applicant had failed to establish that the sign has acquired a distinctive character through use throughout the EU, because the evidence was insufficient and unconvincing. The EGC concluded that the presented surveys could not prove that the mark had acquired a distinctive character through use, because the surveys were conducted in only 10 EU Member States even though there were 27 Member States at the time. The EGC also noted that the figures concerning the advertising investments made, provided to the EGC, did not specifically relate to the claimed mark.

Government Bill on the Partial Reform of the Finnish Trademarks Act was Introduced 

The Finnish Government has on 3 March presented the Government Bill (HE 24/2016 vp) concerning the partial reform of the Trademarks Act, also amending Chapter 49, Section 2 of the Criminal Code. The aim of the proposed changes is to implement the necessary changes in order to bring Finnish law up to date with the EU trademark law and practice. The changes are intended to come into force on 1 September 2016.

The updates in question are mainly structural and terminological. Finnish Trademark legislation will be revised more thoroughly when the new Trademark Directive (Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States) will be implemented to national legislation at latest on 14 January 2019.

Most of the proposed changes touch mainly Chapter 1 of the Trademarks Act, which contains the general rules defining the contents of trademark rights. It has been argued that said chapter does not meet to the requirements of clarity and intelligibility that provisions of the law should fulfill. The changes relate to, for example, the scope of application of the Trademarks Act, the definition of a trademark, as well as the definition of distinctiveness. The Criminal Code will be updated to reflect the changes of made to the Trademark Act.

It is worth noticing that the proposed changes do not in fact change applicable law because the current Trademark Directive and EU case law have already been applied in situations where trademark law not provided sufficient guidance. The changes thus update the letter of the law to mirror the prevailing contents of the law.

Marketing & Consumer

The Finnish Market Court: Elisa May Market its 4G Network as the One with the Best or Widest Coverage 

The Finnish Market Court ("Court") recently gave a judgment (MAO 17/16) on the legality of certain marketing expressions used in comparative advertising that related to the coverage of Finnish 4G networks. The advertising-related dispute arose after DNA Plc. ("DNA") filed a lawsuit against Elisa Plc.("Elisa") alleging that the advertising concerning the quality of its networks breached good business practice. In the end, the Court ruled in favor of Elisa, permitting the use of expressions such as “4G network with the best coverage in Finland”, or “based on studies the 4G network with the best coverage” in marketing of its 4G LTE network.

Firstly, the Court held that comparative advertising is subject to strict accuracy requirements and that the advertiser is under an obligation to prove the accuracy of any advertising claim containing comparisons to competitors' products. The Court considered the surveys Elisa had cited in support of its claims adequate and reliable, thus ruling that Elisa had been able to demonstrate that its 4G network had the best and widest coverage in comparison to its competitors.

Secondly, the Court noted that while Elisa had not specified the meaning of the expressions “best coverage” and “widest coverage” it was clear from the context that they referred solely to the geographical coverage and not to for example the quality of user experience. Therefore, and as they had not given the impression that the advertised network covered the entire territory of Finland, Elisa had not misled the consumers. The fact that, it had failed to mention reservations concerning the findings of the surveys was irrelevant as they did not affect the final conclusion of Elisa having the best audibility in the area that had been surveyed.

Finally, based on legal praxis, companies that advertise services in rapidly changing market conditions need to ensure the accuracy of their advertising expressions in changed circumstances. According to the Court’s view all studies cited by Elisa supported the above mentioned conclusion. Thus, the Court disregarded the fact that the latest study had indicated a decrease in the difference in the coverages of 4G networks and concluded that the marketing expressions had not become misleading on the basis of the changed circumstances.

The judgement is not yet final as the period of appeal expires on 21 March 2016. 

Commission Launches a New Online Consumer Dispute Platform 

On 15 February 2016 the European Commission launched a new online platform that enables consumers and trades to solve their disputes that relate to purchases made online. The legal basis of the new platform is the EU Regulation no. 524/2013.

The new platform is known as the Online Dispute Resolution ("ODR") platform, and provides a single point of entry for EU consumers and traders wishing to settle their disputes out of court. The ODR platform does not handle the cases itself, but channels the disputes to the qualified national alternative dispute resolution ("ADR") bodies that are ultimately in charge of solving the disputes.

In brief, the ODR process consists of four stages. In the first stage, an online complaint is submitted to the Commission's ODR-site, and the parties of the dispute agree on the ADR body handling the matter. Thereafter, if an agreement is reached between the trader and the consumer on the ADR body, the ODR platform sends the details of the dispute to the mutually agreed ADR body. Third, the ADR body will decide if it is competent to handle the issue. Lastly, if the dispute is handled, the ADR body decides on the outcome of the dispute and notifies the parties of the outcome.

The introduction of the ODR platform has an impact on the informational duties that the traders established in the European Union being engaged in online sales have in relation to consumers. The traders must, inter alia, provide an easily and accessible link to the ODR platform and their e-mail address on their websites. Further, the traders also have to provide information regarding the ORD platform in the general terms and conditions being applicable to online sales and service contracts. In practice, the latter requirement entails that the traders must inform the consumers about the existence of the ODR platform and of the possibility to use the ODR platform for resolving any disputes. 

The Finnish Market Court Grants a Preliminary Injunction in a Tire Mrketing Case 

The Finnish Market Court has granted a preliminary injunction on 23 December 2015 (MAO:939/15) in a case regarding marketing statements for tires. In the case Michelin Nordic AB had applied for a preliminary injunction against vannetukku.fi Oy in which it demanded, inter alia, that vannetukku.fi Oy ceases using six statements in its marketing, including "TM-test success", "Winner against Michelin!" and "LingLong was the true giant sleeper of the Tekniikan Maailma tire test" by the threat of an EUR 300 000 conditional fine. The abbreviation "TM" refers to a Finnish magazine (Tekniikan Maailma), which was one of the magazines, in which the tire test referred to in the marketing statements were published in 2011.

Michelin Nordic AB claimed that vannetukku.fi Oy had presented in its marketing misleading or untrue statements regarding Michelin tires and the LingLong tires vannetukku.fi Oy was marketing. Michelin Nordic AB claimed also that vannetukku.fi Oy had exploited Michelin's reputation in violation of good business practice.

The Market Court evaluated the marketing statements used by vannetukku.fi Oy and considered that the requirements for granting a preliminary injunction were fulfilled for the using the marketing phrase "TM test success". The Market Court stated that it is probable that the unfair acts of vannetukku.fi Oy might continue and thus damage could be caused to Michelin. The prohibition was strengthened with a conditional fine amounting to EUR 50,000. 

In Brief

Swedish Market Court: Unfair Marketing of Insulation Materials on a Web Page 

After opposition from the Association Swedisol, the Swedish Market Court ruled on 4 February 2016 (MD 2016:2) that SPU Isolering AB ("SPU"), a company active in the industry of construction materials, had conducted misleading and unfair marketing when making certain statements on insulation materials. Since the Market Court found that the marketing had been directed towards consumers interested in purchasing insulation materials for use in construction or home renovation, as well as entrepreneurs in the construction industry, it was crucial how the average consumer and entrepreneur interpreted the statements. The Market Court found that the statements gave the impression of the materials having certain qualities and stated that SPU had not produced any evidence proving the truthfulness of the statements.

Swedish Market Court: Unfair Marketing of Heating Pumps in Magazines 

On 1 March 2016 the Swedish Market Court found that Bosch Thermoteknik AB and its auxiliary firmIVT Värmepumpar ("IVT") had conducted misleading and unfair marketing (MD 2016:4). IVT had marketed a heating pump and used certain statements, such as the IVT heating pump being the best in the world and that money could be saved by using the IVT heating pump instead of competitors' corresponding products. The Market Court stated that IVT had not produced evidence as to the statements' accuracy. Further, IVT had not produced the evidence on which the statement regarding the comparison with competitors' products had been based. 

Finnish Supreme Administrative Court Rules on Gift Tax on Trademarks 

The Finnish Supreme Administrative Court has on 18 January 2016 given a preliminary ruling (KHO:2016:5) stating that a trademark right transferred as a gift is considered an asset for which gift tax is to be paid under Section 1 of the Inheritance and Gift Tax Act.

In this case a father was planning to donate to his son all the shares in his company as well as the trademarks, which were used in the business of the company, but which he personally owned. The father also planned to hold a lifelong right to profits accruing from the trademark rights. The Supreme Administrative Court stated that the Inheritance and Gift Tax Act does not leave intellectual property rights outside its scope of application and that intellectual property rights should not fall outside of the scope of application of the inheritance and gift tax even though intellectual property rights are difficult to value.