Hold on to that Data!

The Communications (Retention of Data) Act 2011 (the “Act”) is now in force. The Act (rather belatedly) transposes the 2006 Data Retention Directive (the “Directive”) into Irish law and places increased obligations on internet and telecommunications service providers. Service providers will be required to retain telephone data for two years while internet data must be retained for 12 months.

The Act does not require the content of calls or emails to be retained; however, the time and date of the communication as well as the location of mobile phones will be stored. While the Act contains a number of safeguards, it will be interesting to see how it operates in practice and whether it will have a significant effect on crime detection and prosecution.

In related news, the European Commission has published an evaluation report on the underlying Directive. This report notes that differences in the transposition of the Directive in each Member State (in particular in relation to the periods for retention) have created difficulties for telecommunications service providers. The Commission also notes issues in relation to reimbursement of costs, data security safeguards and the impact on small and medium enterprises. 

The Commission intends to prepare a proposal to amend the data retention rules, which could result in further amendments to the Act in due course. 

IP and the Royal Wedding – A Marriage Made in Heaven?

Economists have estimated that the wedding of Prince William and Kate Middleton could generate up to £620 million for the UK economy. However those eager to take advantage should be aware of the legal ramifications arising from the exploitation of intellectual property rights.

UK trade mark legislation provides that a trade mark consisting of or containing various royal symbols or representations of any member of the royal family cannot be registered without the prior consent of the relevant royal.

Further restrictions exist preventing the use of royal photographs and insignia without consent in the course of business; however, these restrictions have been relaxed by Prince William in relation to souvenirs commemorating his engagement and marriage.  This is provided the souvenirs are in good taste, free from advertisement and explicitly state their commemorative nature.

Viva la Copyright Revolution

Irish artist Jim Fitzpatrick has launched a bid to secure copyright over the iconic stylised image of Cuban revolutionary Che Guevara.

Mr Fitzpatrick based the image on a photo taken by Alberto Korda in 1960. The family of Mr Korda has previously sought to control the use of the image against certain commercial exploitation. Mr Fitzpatrick argues that copyright subsists in the image, which, though based on Mr Korda’s photograph, is in itself an original artistic work.
 
Mr Fitzpatrick has stated that he intends to assign the copyright in the image to the family of Che Guevara and to the people of Cuba. His bid may however be complicated by the widespread use of the image since its creation.

A Lidl bit of Comparative Advertising Never Hurt Anyone

The ECJ has ruled that comparative advertising by a retailer in highlighting price differences with a competitor may not necessarily be misleading even where the goods in question are not identical.

The case was taken by supermarket giant Lidl as a result of an advertisement in a French newspaper by competitor Vierzon.  The Court found that differences in the origin or the ingredients of two products being compared do not necessarily mean that the products do not serve the same needs. It is a matter of specifically assessing the products in question to determine whether they are sufficiently interchangeable or not.

Football Transmission Rights Holders Caught Offside

The ECJ has been advised that preventing cheaper access to English Premier League matches through the use of decoder cards purchased in other EU member states would contravene the fundamental principles of EU law and eliminate competition in the internal market.

The opinion from Advocate General (“AG”) Kokott relates to a number of cases taken by the Football Association Premier League (“FAPL”) against pub owners in England who screen English games using Greek satellite services. Under the current system, football transmission rights are sold separately on a country-by-country basis at varying price levels.

The decoder cards, though purchased at a cheaper price, were obtained legitimately in line with the free movement of goods. The AG found that the FAPL’s intellectual property rights were outweighed by the rights of consumers to choose where they purchase goods and services. 

If the ECJ follows the opinion of the AG, the financial nature of football business could be completely overhauled.

Zuckerberg “Steals” Facebook for $65 Million

A US Court has upheld a $65 million settlement between Facebook and twins, Cameron and Tyler Winklevoss. In the original lawsuit, which inspired the movie, “the Social Network”, the brothers claimed that Facebook founder Mark Zuckerberg stole the idea for Facebook from them while they were classmates at Harvard University. Divya Narendra, a partner of the twins also entered into the original settlement but did not pursue the appeal seeking to undo the settlement agreement.

The Winklevosses claimed that the original settlement should not be binding because an undervaluation of Facebook shares had been provided. The Court ruled that they saw no basis for allowing the twins to back out of the agreement and that it was time for the lengthy litigation to come to an end.

“Genuine Use” – Not So Genuine After All

A Dutch court has referred a number of questions to the ECJ concerning the correct definition of “genuine use” under European trade mark law.  It is hoped that the reference will provide some much needed clarity in this area.

Last year, the Benelux Intellectual Property Office ruled that the use of a Community Trade Mark (“CTM”) in one EU member state only was not sufficient to show that the mark had been put to “genuine use” within the EU.  Prior to this decision, any form of substantive use as a CTM, in even one member state, was considered sufficient to constitute “genuine use”.  Irish CTM holders will await the outcome of the case with interest.