Intellectual Property

The Swedish Supreme Administrative Court ruled on the Exception for Processing of Personal Data in Unstructured Material 

The Swedish Supreme Administrative Court has in its recent decisions (642-14571-14) ruled on the exception from the data protection rules for processing of personal data in unstructured material. The exception applies when the processing of personal data is not part of or is not intended to be part of collection of personal information that has been structured to significantly facilitate the search for or compilation of personal data. This does not apply when the integrity of the person in question is violated.

The issue rose to discussion when the Data Inspection Board in Sweden issued orders against two companies providing services to employers which included background checks for potential employees. The Data Inspection Board stated that the exception for processing of personal data in unstructured material was not applicable and that the companies therefore either had to cease the services or take specific actions in accordance with the Swedish Privacy Act (1998:204).

The Supreme Administrative Court held, however, that the personal data was structured in such a way that it was merely listed in simple digital documents by a word processing program. Even though computer technology had been utilized, the information was not found to be structured in a manner comparable to manual handling. The Supreme Administrative Court therefore held that the personal data had not been structured to significantly facilitate the search or compilation of personal data and that the  exception in the Swedish Privacy Act therefore did apply to the case at hand.

CJEU: Stem Cells from Parthenotes Not Excluded from Patentability

The Court of Justice of the European Union (CJEU) ruled in December of 2014 that parthenotes, i.e.unfertilized human egg cells stimulated to divide in a manner analogous to that of a human embryo, are not excluded from patentability under the Directive on the Legal Protection of Biotechnological Inventions (Directive 98/44/EC). According to the so-called “Biotech Directive”, the uses of human embryos for industrial or commercial purposes are considered unpatentable. As previously set in 2011 in the case Oliver Brüstle v. Greenpeace, the CJEU ruled this to mean all methods which involved the destruction of a human embryo.

The case now referred to the CJEU by the High Court of Justice (England and Wales) therefore dealt essentially with whether parthenotes constituted a “human embryo” within the context of the Biotech Directive, and methods in which they are used would thus be excluded from patentability.

The CJEU ruled, in accordance with the Advocate General’s opinion, that a human embryo within the context of the Biotech Directive must have inherent capability to develop into a human being. Thus organisms bearing close resemblance, but lacking that inherent capability would not be excluded from patentability.

According to EU law, the CJEU stated that the actual assessment of whether in the light of current scientific knowledge, a particular organism has the inherent capability to develop into a human being is left within the jurisdiction of national courts to decide. In the case in question, the High Court had already decided that parthenotes lack such capability. Thus stem cells from parthenotes were not excluded from patentability in this case.

Marketing & Consumer

Many Customer Service Numbers Not in Compliance with Finnish Law

A supervision campaign conducted in Finland by the Consumer Ombudsman revealed that the majority of the examined businesses do not comply with the obligation to provide customer service numbers without additional fees, or do not show the price on their websites.

The obligation to provide a basic-price customer service number for matters related to customers’ previously concluded agreements is based on the Directive on Consumer Rights (2011/83/EU) which has been in force in Finland since 13 June 2014. Matters relating to the agreements are considered to be, e.g. terminating an agreement and filing a complaint regarding delay or defect. The businesses may still have customer service numbers for matters not related to previously concluded agreements, but the purpose of the number and the price of the call must be indicated clearly. The price must be shown every time such a number is mentioned, e.g. in advertisements and on websites.

The Consumer Ombudsman examined almost 300 websites during the autumn 2014 and found inadequacies in almost 70 per cent of the inspected websites. The inadequacies included overly expensive customer service numbers and shortcomings in indicating the price. For the services that did not indicate the price at all, it was unclear whether the pricing corresponds with the requirements set down in the legislation.

After the inspection the Consumer Ombudsman has informed the companies not complying with the law about the need to change their customer service numbers. Additionally, the consumers are entitled to compensation from the company if the customer service number pricing exceeds the basic price (Chapter 2, section 14(3) of the Consumer Protection Act 38/1978, as amended).

The Swedish Supreme Court Finds Consumer Not Liable to Pay Travel Agency’s Invoice in Case of Airline Bankruptcy 

The Swedish Supreme Court held in a recent case (T 3354-13) that a consumer was able to make the same objection against a travel agency’s payment claim, as she could have done against the airline not performing the flights.

In the case in question the consumer had used a travel agency to book the flights. After the travel agency had accounted payment for the tickets to the airline, the travel agency sent tickets to the traveler accompanied with an invoice. The flight was however canceled due to the airline’s bankruptcy and the travel agency went on to claim the payment from the consumer, who refused to make the payment.

The Supreme Court concluded that it was clear that the travel agency did not act in its own name, but merely as an agent. The Supreme Court continued with stating that the travel agency had paid the tickets with its own funds and also invoiced the traveler with ten days deferred payment.

Thus, regardless of the reasons for why the travel agency covered the expenses for the tickets, it was considered to be acting as an independent creditor having granted the traveler deferred payment on a credit purchase. The granted credit was therefore to be considered as a consumer credit under the Swedish Consumer Credit Act (2010:1846). According to the Consumer Credit Act, the consumer has the right to make the same objection against the creditor as against the seller. The fact that the accounted payment was not deducted from the travel agency’s account until after the invoice due date was, according to the Supreme Court, irrelevant.

The Supreme Court also stated that a general principle within contract law is that a party may suspend the performance of his obligation if it becomes apparent that the other party will not perform. The Supreme Court held the principle to be applicable also in this case. Hence, as the traveler would have had the right to object payment towards the airline due to not performing the specified flights, the same objection could be made towards the travel agency. The traveler was therefore not liable to pay the invoice.

The Swedish Market Court Prohibits Brand Stretching Regarding Tobacco Brands 

The Swedish Market Court has in a recent case (MD 2014:14) concerning marketing of tobacco products prohibited the company name Swedish Match North Europe AB (“Swedish Match”) from selling certain products branded with snuff brands.

In its flagship store in Stockholm, Swedish Match sold a sweater, a skateboard, a pair of skis, a ski helmet, a mobile shell and a jacket branded with different snuff brands. According to the Swedish Tobacco Act (1993:581), marketing of tobacco towards consumers is forbidden. Exceptions apply inside point of sale, where marketing is allowed as long as it is not invasive, outreaching or encourage people to use tobacco. The Court stated that there was reason to assess the marketing of snuff somewhat differently than cigarettes, which to a higher degree affects public health. Still, the prohibition against certain marketing of snuff was deemed appropriate and necessary.

With special regard to the fact that the branded products were sold in a store also selling snuff, the Market Court found the products in question to be directly linked with the snuff products. The branded products were therefore held not to follow the requirements for moderate marketing in the Swedish Tobacco Act and the marketing was thus held unfair.

The Swedish Market Court Allows Long Term Credit Offers to Consumers 

The Swedish Market Court has in a recent case (MD 2014:18) assessed long term credit offers targeted to consumers. Elgiganten AB (“Elgiganten”) had marketed home electronics and white goods for which payment could be divided in a number of monthly payments without any interest or fees, during a payment period from 10 to 60 months. The number and amount of monthly payments varied with the purchase price, so that the payment period was longer at a higher purchase price and vice versa.

The Consumer Ombudsman brought an action against Elgiganten, claiming that the marketing of consumer credit was contrary to good credit practice (Sw. “god kreditgivningssed”) under the Consumer Credit Act (2010:1846) as well as against good marketing practice. According to the Consumer Ombudsman, the marketing gave the impression that the credit only to a small extent affected their economy and enticed consumers to buy on credit without considering the consequences of the indebtedness. However, the Market Court dismissed the case.

The Market Court stated that the credit offer was favorable, as no interest or fees were applied, but that the offer could not be held to be contrary to good credit practice for this reason. Further, there was no support for that the average consumer would lack interest in or capability of assessing the effect of the credit on its own economy, especially since the number and amount of monthly payments were clearly indicated. The marketing could therefore not be considered misleading.

The Market Court also stated that is commonly known that the development of new products within home electronics is fast. However, the fast development of new products could not be said to have any significant effect on the assessment of the credit offer. Neither did the factor that a repayment period of 60 months would exceed the warranty period of three years under the Consumer Credit Act lead to the credit offer being considered contrary to good credit practice. 

In Brief

The New Information Society Code Entered into Force on 1 January 2015 in Finland 

As referred to in our previous IP & Technology Review on 8 December 2014, the new Information Society Code has now entered into force. Some of its provisions, for example, those pertaining to .fi and .ax domains, will not enter into force until a transition period has passed, which for these domain provisions is not until 5 September 2016. Although the legal situation remains to a large extent unchanged, Roschier has published on 13 January 2015 a briefing note about some of the included changes of the new code.

Supreme Administrative Court: Late Opposition Fee Not a Condition of Admissibility in Finland

The Supreme Administrative Court has ruled (2014:170) that a payment of the opposition fee during the opposition period is not a prerequisite for taking the opposition up to examination. In the case in question the opponent had submitted the opposition fee when it appealed the decision of the Finnish Patent and Registration Office, which declared the opposition inadmissible.

The Finnish Patent and Registration Office argued that a due payment was a necessary condition for admissibility, and that therefore they had acted in accordance with the legislation by finding the opposition inadmissible. The Court however found that such condition that directly affects the legal position of the claimant must be imposed by law and thus a lower level provision, order or instruction will not justify the inadmissibility of the opposition. The Supreme Administrative Court overturned the Board of Appeal decisions and returned the case to the Finnish Patent and Registration Office.