Data Privacy

CJEU Rules on the Interpretation of the Concept of Personal Data under the Data Protection Directive 

In the recent ruling Patrick Breyer v. Federal Republic of Germany (C-582/14) of 19 October 2016, the Court of Justice of the European Union (“CJEU”) issued a new interpretation of Articles 2(a) and 7(f) of Directive 95/46/EC (“Data Protection Directive”) concerning the concept and storing of personal data. CJEU stated that a dynamic IP address might constitute personal data in situations where a third party (in this case online media service provider) registers the IP address of a user of a website and has the additional information necessary to identify the individual.

In more detail, CJEU found that a dynamic IP address collected by a third party constitutes personal data only when the third party has a possibility and means to combine the IP address with the additional information in a way that a person can be identified. In addition, when CJEU outlined the concept of means, it referred to the possibility that the means are “likely reasonably to be used to identify” the individual. The aforementioned criteria is relatively loose because in its judgment CJEU also held that only a legal possibility to request such information from an online media service provider constitutes a sufficient possibility to identify an individual.

Regarding Article 7(f) of Data Protection Article, CJEU ruled a restrictive interpretation on the legislation of a Member State (in this case German law provision), which limits the use of legitimate interest as a basis for processing of personal data in an online context. CJEU held that the provision does not correspond to the Data Protection Directive if it does not give any consideration to the concept of legitimate interest.

Swedish Supreme Administrative Court Rules that Drone-Mounted Cameras Constitute Surveillance Cameras

In a recent judgement of 21 October 2016 (78-16), the Swedish Supreme Administrative Court ("Court") ruled that a camera mounted on a flying drone constituted a surveillance camera and, consequently, was subject to a permit. As such permits are generally granted only in cases when the camera is used to prevent criminal acts, accidents or similar, the judgement was followed by strong reactions in the media from the emerging drone camera industry.

The ruling was given in a dispute between the company Scientific Engineering QED and the Swedish Data Protection Authority. The company wanted to use cameras mounted on drones to take still photos of buildings and construction sites for commercial purposes. The company had requested a permit from the County Administrative Board, but was denied as the company's interests were not considered to outweigh the privacy of any individuals who may be caught on camera.

The definition of surveillance camera, forming the basis for the judgement, was "a camera, which is mounted in a way that it can be used for surveillance of persons, without being maneuvered at the place." The Court divided the definition into three questions.

First, the Court stated that a camera can be considered mounted also to a moving object. However, it must not merely be temporarily mounted. As the actual camera was recurrently being mounted to the drone, the Court answered the first question affirmatively. Second, the Court stated that since the camera took pictures from the air, while the maneuvering was being handled from the ground, the camera was not being maneuvered at the place, cf. handheld cameras. Lastly, the Court found that the camera was able to be used for surveillance of persons. The fact that applicable regulations set a distance limit of 50 m was irrelevant, as the Court only assessed whether the camera could be used for such purposes. It is still uncertain, what consequences the judgment will have moving forward.

In Finland, there are no special permits for the use of drones and the evaluation of the acceptability of their use by private persons is made on a case by case basis. However, the requirements and limitations set under the Finnish Personal Data Act and the legislation relating to privacy protection are likely applied should people be pictured with the drone devices. So far there has not yet been much legal discussion on the use of drones as surveillance cameras in Finland.

Intellectual Property

CJEU: Unauthorized Resale of a Back-up Copy of a Computer Program Constitutes Copyright Infringement

The Court of Justice of the European Union ("CJEU") held in its ruling (C-166/15) of 12 October 2016 that an acquirer of a copy of a computer program is not entitled to resell a back-up copy of the program without the copyright holder's authorization even where the original material medium of the copy has been damaged, destroyed or lost. The case concerned exhaustion of the copyright holder's distribution right in light of Articles 4(a), 4(c), 5(1) and 5(2) of the Directive 91/250/EEC ("Software Directive").

A Latvian court requested a preliminary ruling from CJEU in connection with criminal proceedings against two private persons who were charged with the unlawful sale of copies of Microsoft computer programs on the Internet. The estimated number of sold copies amounted to more than 3000. As the offences were committed in 2001-2004, the dispute was covered by the old Software Directive 91/250/EEC and not by the Directive 2009/24/EC. The Latvian court asked whether the acquirer of a used copy of a computer program stored on a non-original material medium, may resell such back-up copy due to exhaustion of the copyright holder's distribution right where (i) the original material medium of the program acquired by the initial acquirer has been damaged; and (ii) the initial acquirer has erased or ceased using his copy.

CJEU referred to its earlier judgment in UsedSoft (C-128/11) where it held that the exhaustion of the distribution right takes effect (i) after the first sale of a copy of a computer program in the EU; (ii) by or with the consent of the copyright holder – irrespective of whether the sale relates to a tangible or an intangible copy of the computer program. The lawful acquirer of a copy of a computer program has the right to resell the program due to exhaustion of the distribution right provided, however, that the sale does not adversely affect the copyright holder's exclusive reproduction right. Therefore, any reproduction of the program must either be authorized by the copyright holder or covered by the exceptions of the Software Directive.

Under the Software Directive, a back-up copy may be made only on two conditions: the copy must (i) be made by a lawful acquirer and (ii) be necessary for the use. The exception to the copyright holder's exclusive reproduction right should be interpreted strictly. As a back-up copy may be used only to meet the needs of the person having the right to use the program, CJEU held that the person cannot resell his back-up copy to a third party without the authorization of the right holder, even if the original one has been damaged, destroyed or lost.

It is worth noting that the case at hand concerned the online sale of copies of computer programs stored on non-original material medium such as floppy discs, CD-ROMs or DVD-ROMs. In UsedSoft, the question was of resale of digital copies of computer programs downloaded from the copyright holder's website. In UsedSoft, any subsequent acquirers of the copies downloaded by initial acquirers from the copyright holder's website were entitled as lawful acquirers to benefit from the reproduction right by downloading a new copy of the program upon its resale provided that the previous acquirer erased his own copy. CJEU held that such download constituted reproduction necessary to enable the new acquirer to use the program in accordance with its intended purpose. Accordingly, from exhaustion perspective, a back-up copy on a non-original material medium is treated differently from a digital copy downloaded from the copyright holder's website. Only time will tell what is the practical impact of the rulings. 

Finnish Market Court rules on the Interpretation of the Time Priority Rule of Trademarks in Connection to Domain Name Disputes

In its judgement MAO:585/16 of 20 October 2016, the Finnish Market Court decided that the priority date for a trademark, i.e. the filing date of the first application based on which the subsequent international trademark applications are filed under the Paris Convention for the Protection of International Property, is to be considered the application date of the mark in question when evaluating prior rights in domain disputes.

The dispute initiated when Microsoft Corporation made a removal claim to the Finnish Communications Regulatory Authority (''FICORA'') regarding defendant A's domain name registration onedrive.fi, applied and registered on 27 January 2014. Microsoft based its claims on its international trademark registrations ONEDRIVE (No. 1213324) and MICROSOFT ONEDRIVE (No. 1204192). The priority applications where filed in South Africa - and the trademarks were then designated to cover inter alia the European Union. The notification from World Intellectual Property Organization (WIPO) concerning trademark ONEDRIVE had reached the European Union Intellectual Property Office (EUIPO) on 21 August 2014 with EUIPO then accepting 4 September 2013 as the priority date. Further, the notification from WIPO concerning trademark MICROSOFT ONEDRIVE had reached the EUIPO on 29 May 2014 with EUIPO then accepting 20 September 2013 as the priority date.

FICORA rejected Microsoft Corporation's removal claim and stated in the proceedings that the protection for these marks would have begun only on the 2014 dates (i.e. the dates when these subsequent applications became pending) - that were later than the domain name application and registration date. Their reasoning was, inter alia, that it is not specifically defined in the Finnish domain name legislation on what day the protection of the trademarks is considered to begin.

The Market Court however, based on the Finnish Trademark Regulation (1964/296) as well as the Council Regulation on the Community Trademark (No 207/2009), stated that when defining which right is more senior for national trademarks and European Union trademarks, the priority date of the trademark is considered to be "the application date" discussed under this case. The Market Court further stated that there was no specific reason that different principles should be applied within the domain legislation. Thus, the Market Court ordered the trademark onedrive.fi to be revoked and Microsoft Corporation now has the right to apply the domain name to be transferred to itself. The decision is not final.

Finnish Market Court Rules that BMW's and Rolls-Royce's Trademarks May Not Be Shown on the Webpage of a Car Repair Company

In its judgement MAO:641/16 the Finnish Market Court ruled that the use of the figurative trademarks BMW (EUTM registration No. 000091884), MINI (International trademark registration No. 727906) and Rolls Royce (EUTM registration No. 003384039) on the webpage of a car repair company may have created an association that there is a business relationship between the car repair company and the plaintiffs Bayerische Motoren Werke Aktiegesellschaft and Rolls-Royce Motor Cars Limited, or that the car repair company would belong to the distribution chain of the plaintiff companies. Thus, based on Finnish as well as European Union trademark legislation, the use of the trademarks on the website infringed the trademark rights of the plaintiffs.

The car repair company in question was a small car repair business. The figurative trademarks for BMW, MINI and Rolls Royce were displayed on the webpage of the company for approximately three months before the plaintiffs demanded the removal of the trademarks. The trademarks were thereafter removed but the car repair company did not confirm to have infringed the trademarks, to refrain from the infringement in the future nor to pay the demanded compensation of 500 euros.

In addition to confirming the infringement of the plaintiff's trademarks, the Market Court ordered the car repair company not to repeat the infringements. The Market Court also ordered the car repair company to pay reasonable compensation for the use of the plaintiff's trademarks for the three-month period they were on display. Taking note to the small scope of the car repair business and as the damage caused to the plaintiffs was not shown, the Market Court rejected the claims for damages in the matter. The decision is not yet final.

CJEU Rules that the Shape of the Rubik's Cube Cannot Be Protected as a Trademark

In its judgement C-30/15 Simba Toys GmbH & Co. KG v European Union Intellectual Property Office and Seven Towns Ltd of 10 November 2016, the Court of Justice of the European Union (''CJEU'') gave its much anticipated judgement on the interpretation of Article 7 (1)(e)(ii) of Council Regulation (EC) No. 40/94 on the Community Trademark (the long dispute was governed by this regulation which is repealed and replaced by Council Regulation No. 207/2009 on the European Union trademark). The article provides that "signs which consist exclusively of the shape of the goods which is necessary to obtain a technical result" are not to be registered as Community trademarks (now called "EU trademarks"). The evaluation of the CJEU of this article resulted in the conclusion that the Rubik's Cube should not receive Community trademark protection.

CJEU pointed out that Article 7 (1)(e)(ii) is set to prevent trademark law from granting companies with monopolies on technical solutions or functional characteristics in their products. Furthermore, in order to make the analysis on the functionality of the trademark, "the essential characteristics of a shape must be assessed in the light of the technical function of the actual goods concerned". Thus, the General Court should have paid attention to the technical function that the goods entailed, namely the fact that they were three-dimensional puzzles - and take the additional information on the actual goods into evaluation in parallel to the graphic representation of the trademark.

The Court also stated on the fact that the mark was registered for "three dimensional puzzles" in general and was not restricted merely to those that have a rotating capability. This fact, according to CJEU, "cannot preclude account from being taken of the technical function of the actual goods represented by the sign at issue for the purpose of examining the functionality of the essential characteristics of that sign". Otherwise, the registration would cover any type of three-dimensional puzzles with cube type elements despite of their technical functionalities.

Seven Towns Ltd, which is a global toy company, had been granted a Community trademark registration for the Rubik's Cube in 1999. Simba Toys, which is also a global toy company, filed an application for a declaration of invalidity of the mark back in 2006. This decision thus supposedly marks the end for the ten-year dispute regarding the Rubik's Cube and is set to be a landmark case in the area of 3D trademarks.

CJEU: The Lending of Digital Copies is Allowed under the Rental and Lending Rights Directive

On 10 November 2016, the Court of Justice of the European Union ("CJEU") ruled on the question of lending e-books in a dispute between Vereniging Openbare Bibliotheken v Stichting Leenrecht (lending right foundation). The primary questions were whether libraries are allowed to lend electronic books and if so, under what conditions. In the judgment (Case C-174/15) the Court assessed the interpretation of Article 4(2) of Directive 2001/29/EC (Directive on copyright in the information society) and Article 1(1), Article 2(1)(b) and Article 6(1) of Directive 2006/115/EC (the Rental and Lending Rights Directive).

CJEU noted in its judgment that there is no decisive ground for the exclusion of electronic copies from the scope of the Rental and Lending Rights Directive. Contrary to exclusion, CJEU found that copyright must adapt to new economic developments such as new forms of exploitation. CJEU considered the scope of Article 6(1) of the Rental and Lending Rights Directive, which concerns derogation from the exclusive public lending right and held that the concept of "lending" covers also the lending of a digital copy. CJEU concluded that under certain conditions, the lending of a digital book should be treated in the same way as the lending of a traditional book.

CJEU also stated that in respect of a case where a digital copy has been obtained from an illegal source, it is obvious that the public lending exception does not apply. Since one of the main aims of the Rental and Lending Rights Directive is to reduce piracy, allowing to lend a copy obtained from an unlawful source would be unreasonable and it would cause damage for the copyright holders.

Life Sciense

CJEU Ruled on the Duration of a Supplementary Protection Certificate of a Medicinal Product

In the judgment (C-572/15) of 5 October 2016, the Court of Justice of the European Union ("CJEU") assessed the interpretation and validity of Article 21(2) of Regulation 469/2009 concerning the supplementary protection certificate for medicinal products. The ruling concerns the duration of validity of a supplementary protection certificate ("SPC") in a situation where the certification was granted in accordance with a state's national legislation prior to its accession to the EU.

The ruling was given in proceedings between a Swiss company F. Hoffmann-La Roche AG ("Roche"), which held the SPC for its medicinal product, and Estonian Accord Healthcare OÜ ("Accord"), which produces generic medicinal products. Accord argued that Roche's SPC could not be valid, since the product was granted a marketing authorization in the EU in 1998 which is more than the overall maximum of 15 years ago. Roche argued the contrary because the SPC was granted at a time when Estonia was not yet an EU member. Therefore, the duration of the SPC was determined by the authorization in Estonia in 2001. The Estonian Supreme Court referred the matter to the CJEU for a preliminary ruling on whether Article 21(2) applies to an SPC issued by a state before its accession to the EU and whether the said article is compatible with the general principles of EU law.

In its ruling, the CJEU held first that it does not have jurisdiction to rule on the validity of the article in the light of EU law. Further, the CJEU reminded that the duration of validity of the SPC depends on when the first authorization was granted in any EU member state, not in the Member State of the application. Further, the effects of an authorization granted in an EEA member state are equivalent to those granted in the EU. Consequently, the CJEU found that the article applies to an SPC issued by a Member State prior to its accession to the EU. Further, the CJEU held that if a marketing authorization has already been granted within the EEA before a marketing authorization is granted in an EU member state, only the first authorization must be taken into account when calculating the duration of validity of the SPC. 

CJEU Rules on the Trade Mark Proprietor's Right to Oppose the Repackaging of a Medicinal Product by the Parallel Importer

In its ruling (C-297/15) of 10 November 2016, the Court of Justice of the European Union ("CJEU") assessed a case concerning parallel import of a medicine under the Directive to approximate the laws of the Member States relating to trade marks (2008/95/EC) ("Directive").

The pharmaceutical company Ferring Laegemidler A/S sued parallel importer Orifarm A/S in Denmark for trademark infringement. The trade mark proprietor Ferring sold its laxative drug under the trade mark "Klyx" in, inter alia, Norway and Denmark in two different volumes and in two different packet sizes (ten-piece and one-piece packets). Orifarm had purchased the ten-piece packets in Norway, repackaged them into one-piece packets and reaffixed Ferring's trade mark to the packet before selling the product in Denmark. Before the referring court (Sø- og Handelsretten), Ferring claimed that the repackaging was not necessary to market the product imported in parallel and that the repackaging was not justified as the parallel importer attempted to obtain commercial advantage. Orifarm, on the other hand, stated that without the contested repackaging, the imported product could only be marketed in a limited part of the Danish market.

CJEU reasoned that the trade mark proprietor cannot oppose the repackaging of the product in new external packaging if the packet size used by that proprietor in the state where the importer purchased the product cannot be marketed in the importing state because of, e.g., a rule authorizing packaging only of a certain size. With reference to prior case law, CJEU held that it is for the parallel importer to prove the existence of the conditions preventing the trade mark proprietor from lawfully opposing further marketing of those medicinal products.

According to CJEU, Article 7(2) of the Directive must be interpreted to mean that a trade mark proprietor may prohibit the continued marketing of a medicine by a parallel importer when the importer has repackaged the product and reaffixed the trade mark, when; firstly, the medicine can be marketed in the importing state (i.e. Denmark) in the same packaging as that in which it is marketed in the exporting state (i.e. Norway), and secondly, the parallel importer has not shown that the imported product can only be marketed in a limited part of the importing state's (i.e. Denmark) market. CJEU concluded that Orifarm had not demonstrated that the market for Klyx in ten-piece packets represented only a limited part of the Danish market, but this matter was left for the referring court to determine. 

CJEU Found a Fixed Price System for Prescription-only Medicinal Products Infringing the TFEU

The Court of Justice of the European Union ("CJEU") assessed the freedom of movement concerning prescription-only medicinal products in its recent ruling (C-148/15) dated 19 October 2016. CJEU stated that national legislation that creates a system of fixed prices for prescription-only medicinal products sold by pharmacies is a measure equivalent to a quantitative restriction on imports and, as such, infringes Article 34 of the Treaty of the Functioning of the European Union (TFEU).

Deutsche Parkinson Vereiningung eV (a Parkinson organization) informed its members of a bonus system that would apply when purchasing prescription-only medicinal products from a Dutch mail-order pharmacy (DocMorris). Zentrale zur Bekämpfung unlauteren Wettbewerbs eV (Centre for Protection against Unfair Competition) claimed that the bonus system infringes German legislation that entails a system of fixed prices for prescription-only medicinal products supplied by pharmacies. The Higher Regional Court of Düsseldorf referred the following question to the CJEU: does the system of fixed prices for prescription-only medicinal products constitute a measure equivalent to a quantitative restriction on imports, and, if so, could this be justified under Article 36 of TFEU (protection of health and life of humans) if the system is the only possibility to ensure geographically consistent supply of medicinal products across the country, including the countryside?

CJEU concluded that the prohibition of mail-order sales of medicinal products, which may be sold only in pharmacies, is more damaging to pharmacies located outside Germany than to domestic pharmacies. Accordingly, the system of fixed prices can affect more market access for products originating from other Member States. CJEU rejected the grounds presented by the German competition authority, according to which a system of fixed prices was necessary in order to ensure that price competition would not lead to run down of pharmacies in the countryside. In CJEU's view it had not been shown how fixed prices would secure a better geographical coverage of traditional pharmacies. Therefore Article 36 TFEU could not be invoked in the case at hand. 

Marketing & Consumer

CJEU Ruled on the Interpretation of the Concept of Misleading Practice Under Article 6(1) and 7(4) of the Unfair Commercial Practices Directive

The Court of Justice of the European Union ("CJEU") has delivered a judgement in criminal case (C-611/14) against Canal Digital Danmark A/S that relates to the Unfair Commercial Practices Directive (2005/29/EC). In the judgement of 26 October 2016, CJEU confirmed that dividing the price of a product into several components and highlighting only one of them is misleading and infringes Article 6(1) of the Directive. Additionally, CJEU stated that Article 7(4) contains an exhaustive list of the essential information that must be mentioned in an invitation to purchase.

Canal Digital is a Danish company that provides for instance television program packages to consumers. The company was accused of infringing the Danish Commercial Practices Act in connection with an advertising campaign for TV subscriptions. The company allegedly provided consumers unclear information on the fact that customers had to pay also for a 'card service' in addition to the monthly price. Canal Digital had for instance marketed the TV subscription on their website, where the monthly price was circled and the total price was shown in a smaller font. The referring court (Retten I Glostrup, Denmark) found the interpretation of the Directive unclear in a situation where all the essential information is provided, but part of the information is presented only in a less conspicuous manner.

CJEU reminded that the referring court must determine whether the practices at issue are misleading and take the perspective of an average consumer into account. Based on the information provided, CJEU found that the Directive must be interpreted as meaning that such commercial practices are misleading.

It seems that despite the price being an essential information that needs to be provided, it could, however, be given to consumers in a misleading way when an important element of the price is not being mentioned or is being mentioned in a confusing or an unclear manner. 

In Brief 

Finnish Supreme Administrative Court Rules on Television Advertising

On 14 November 2016 (KHO:2016:176) the Finnish Supreme Administrative Court found that Sanoma Media Finland—Nelonen Media had acted against the Act on Television and Radio Operations (744/1998) for the break-bumpers shown in between advertisements were not in accordance with the law and the company had also exceeded the maximum duration of advertising time.

The Court had referred the question to the Court of Justice of the European Union, and based on the preliminary ruling (C-314/14) the Supreme Administrative Court stated that screen splitting, where one part of the screen is reserved for the program's closing credits and the other part to a list presenting the upcoming programs, is not a break-bumper and that the so called black seconds and sponsor idents must be included in the maximum advertising time. 

The Swedish Patent and Market Court of Appeal: No Likelihood of Confusion between YOGGI and YOGIBOOST

The Swedish Patent and Market Court of Appeal ruled on a trademark infringement case in the dairy industry between Arla Foods AB and Yogiboost Retail AB (PMT 9856-15) on 18 October 2016. In essence, the Court found that there was no likelihood of confusion between the companies' trademarks. On the similarity of goods and services, the Court pointed out that although there were similarities between fruit yoghurt, for which Arla's trademark YOGGI was registered, and frozen yoghurt, for which Yogiboost Retail's trademark YOGIBOOST was being used, there was a significant difference in how the products were sold. Further, the distinctiveness of YOGGI was considered closely tied to the unique spelling with the two G's, as it is otherwise suggestive for yoghurt-based products.