Commercial Catchup January 2017


Our commercial team recognises the need to keep you up to date with legal, regulatory and policy changes. This is an integral part of your business, which allows you to anticipate risk before it becomes a problem.

Each month, our lawyers identify any areas of interest. In this issue, we will look at:

  • 2017: What Can We Expect?
  • Ringtone Trademark Application Rejected
  • Liability of Those Offering Unprotected Wi-Fi Networks
  • Nursing Home Fined For Data Protection Failure

2017: What Can We Expect?
Much like 2016, 2017 will be dominated by Brexit. We will soon commence a series of complex negotiations to determine the terms of the UK’s formal withdrawal from the EU. Brexit is likely to affect three key provisions in most commercial contracts: termination; governing law; and data protection. We will continue to follow negotiations and update you accordingly.
Over the course of 2017, companies will continue to prepare for the implementation of the General Data Protection Regulation (“GDPR”). The GDPR comprehensively regulates data protection and comes into force in May 2018. Whilst it builds on familiar concepts in existing data protection law, it also goes further. Companies should be aware of the right to be forgotten, and changes in relation to fines and notification of security breaches.
The implementation of the Unitary Patent – or European patent with unitary effect – is likely to take place in 2017. This will sit alongside national patents and classical European patents, and give proprietor’s greater strength and security in the EU. International trade mark presence will also continue to grow as a result of China’s improved approach to protection and enforcement.
Ringtone Trademark Application Rejected
The EU General Court recently rejected an application to register a sound mark as an EU trademark because it lacked distinctive character. The sound mark consisted of two identical notes, but “would generally go unnoticed by the consumer” because no subtle differences could be heard.
This serves as a useful reminder to clients that the more distinctive a trademark, the more likely it is to be accepted.
Case: Globo Comunicição e Participações S/A v EUIPO, Case T-408/15
Liability of Those Offering Unprotected Wi-Fi Networks
The European Court of Justice recently ruled on whether a person offering unprotected Wi-Fi is liable for copyright infringement where a third party uses that network to infringe copyright.
The provider in question ran a business and intentionally did not protect his Wi-Fi to draw nearby customers in. The Wi-Fi was used to make a musical work available on the internet free of charge and without the relevant consent. The provider said that he did not commit the infringement, but that did not know whether it was committed by a user of his Wi-Fi network.
It was held that a person offering unprotected Wi-Fi is exempt from third party liability, provided that they have not:

  • initiated the transmission;
  • selected the recipient of the transmission; and
  • selected or modified the information contained in the transmission.

The Court did, however, say that such providers can be required to end the infringement.
This provides a much needed answer to the question of whether owners of cafes, restaurants and bars are liable for the actions of any customers using their free Wi-Fi.
Case: Tobias McFadden v Sony Music Entertainment Germany GmbH, Case C-484/14
Nursing Home Fined For Data Protection Failure
The Information Commissioner’s Office has fined Whitehead Nursing Home in Northern Island £15,000 for failing to keep personal information secure.
One of the home’s employees took an unencrypted work laptop home, which was stolen during a burglary. The laptop contained sensitive personal details relating to 46 staff and approximately 29 residents.
The ICO found that the home had failed to implement any policies regarding the use of encryption, homeworking, the storage of mobile devices or data protection. The fine was relatively modest given the size of the home and the ICO said that a bigger organisation experiencing a similarly serious breach would receive a much bigger fine.

If we can assist you or your business in any way, or if you have any questions in relation to the services that we offer, please contact us. We look forward to working with you.

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