A round up of other recent developments in Intellectual Property. 

It’s the Essenis of Justice

A recent Supreme Court ruling saw Danone emerge victorious in a trade mark infringement action against Glanbia.

Danone claimed its rights in the trade mark Essenis had been infringed by Glanbia’s use of the Yoplait Essence brand name. Both companies used their respective marks on probiotic yoghurt products.

Glanbia claimed that Danone had not genuinely used its trade mark continuously for the last 5 years. The High Court agreed and held the Essenis trade mark should be revoked.  However, the Supreme Court has now overturned this decision, finding that Danone had shown sufficient proof of genuine use and that the High Court’s application of the law in relation to genuine use was unduly narrow.

“i” Spy online

The US advertising industry, in a bid to ward off privacy regulation, has agreed to add a standard icon “i” to online advertisements that use behavioural data. The icon will link web users to a page explaining how the advertiser uses their web surfing history and demographic profile to send them certain advertisements.

The US Federal Trade Commission expressed concern that privacy policies were not being read or understood by internet users. The advertising industry along with a privacy lobby group began to look at new ways of educating web users about behavioural advertising and found the icon “i” to be the most effective means of informing consumers. Major online companies are expected to begin adding the icon to their advertisements along with key phrases.

The drive towards self-regulation may similarly be followed in the EU and address online privacy concerns while pre-empting further regulation from Brussels.

Big Brother – Data Retention Challenge

Proposed data retention legislation may be in jeopardy following the High Court’s decision to send a reference to the European Court of Justice to determine whether provisions of the Data Retention Directive can be balanced with a person’s right to privacy.

The Communications (Retention of Data) Bill is currently before the Oireachtas and proposes that telecommunications service providers will be obliged to retain details of all phone and text data for 2 years, while internet service providers must store email records for 1 year. The challenge resulting in the referral to the European Court of Justice was brought by the online privacy group Digital Rights Ireland and the case will be closely watched by Irish Internet Service Providers.

YouTube – The $1bn Question

A federal court judge in the United States has ruled in YouTube’s favour in a $1 billion copyright infringement suit brought by Viacom. US law has similar provisions to Irish law in relation to the requirement for online service providers to act quickly to remove or disable content once it becomes aware of copyright infringement.  

One of the questions that the Court considered was whether YouTube needed to have notice of specific infringements before it could be held liable for copyright infringement or whether a general awareness of infringing activity would be sufficient if steps were not taken to remove the infringing material in a timely fashion.

The Court recognised that existing case law meant that it is the copyright holder’s responsibility to find and identify infringing material. Online service providers can only be held liable if they fail to remove such material once informed of specific infringements and are not required to actively monitor their sites.

Ryanair – Think Before You Click

The Irish High Court has ruled that Ryanair’s online terms of use are legally binding between Ryanair and its business to business customers. The case concerned a price comparison site which “screen scraped” Ryanair’s website. The issue which the Court had to resolve was whether a clause of the terms of use providing that the Irish Courts had sole jurisdiction to determine disputes between the parties was legally enforceable.

The Court found that the terms and conditions were binding as the defendant was given an appropriate opportunity to read, review and consider the terms and conditions which were available and clearly visible via a hyperlink. Furthermore, engaging in screen scraping activities, as opposed to being a direct customer who purchases flights, was sufficient use of the Ryanair website to generate a contractual relationship between the parties.