Germany's Facebook Ban

Last week a draft bill was backed by the German government limiting the use of Facebook by employers when hiring new staff. The proposed legislation will still allow employers to consult other social websites that make job information and networking public, such as LinkedIn or Xing. However, if an employer was to “befriend” an employee or hack into their account to access private data, with the intention to use the information against them, the employer could expect a fine of up to €300,000.

This development comes off the back of a number of workplace scandals that have recently surfaced. Deutsche Telekom (telecommunications company), Deutsche Bahn (national railway) and Lidl (retailer) are amongst the highest profile employers involved. The bill still faces a final debate and vote in parliament but is speculated to become law as early as this year.

One issue envisaged with the new proposed law is the difficulty in enforcing it. For example, it will be difficult for any employee to prove that personal information from their page on any private social network has made its way into hiring files.

The bill marks the increasing growth of German government control of data privacy. The same bill plans to restrict the use of video recording employees in places where they are not made aware of such use, despite arguments from opponents claiming that the proposal will affect anti-theft measures and employee corruption.

Separately, the German Data Protection Authority is investigating Google Street View for issues of privacy and allegations of collecting unencrypted wifi data. Google have said that this was a mistake and have stopped this process. Google have also introduced tools for German residents to opt out of their property being displayed on the street image software. Meanwhile, German authorities are also testing Apple on their data collection policies for devices like the iPhone.

The proposed bill for Germany seems to be welcomed amongst politicians. Up until now there has been no such legislation regulating social networking websites in this way. It is hoped that it will provide future guidance for courts in the growing number of cases involving networks such as Facebook. It is unknown at this stage whether the UK is soon to follow in Germany's legislative steps.


This blog was largely contributed by Nicola Mallon, whose copyright and moral rights in the blog are asserted. Many thanks to Nicola from everybody at Forde Campbell.

Places You Can’t Escape Facebook

At Facebook HQ on 18th August, CEO Mark Zuckerberg launched the highly anticipated new app, ‘Places’.

Following the lead of rival applications, Foursquare and Gowalla, the social networking site now offers its own geolocation service. The application allows users to ‘check in’ to various locations, in order to let their friends know where they are in real-time. It is also possible to tag friends who have been spotted in the same location. Places updates will be broadcast on friends’ News Feeds, on the user’s Wall, and in the ‘activity stream’ for that location.

Michael Sharon, the product manager for Places states that the goal of the app is to take the virtual relationships created through Facebook into the physical world. However, the commercial advantages for local businesses are also clear. Real-time geolocation data would enable shops, restaurants, bars and clubs to send vouchers, prizes, or promotion deals to entice customers who are nearby.

With over 500 million users on the site, the application is certain to send Facebook deeper into the quagmire of privacy debates. Rainey Reitman, spokeswoman for the non-profit consumer advocacy organisation, Privacy Rights Clearinghouse warned, “Location data is tied to people’s safety – if people know where you are, they know where you’re not.” Under the privacy settings, it is possible to control whether others can see your location by unchecking the “include me in ‘People Here Now’ after I check in” option, and disabling the “Friends can check me into places” function. Under the default setting, check ins will automatically be published.

The app is currently only available for smartphones in the US, but plans are already underway to include other countries in the upcoming months.

Further reading:
http://www.facebook.com/places/
http://www.guardian.co.uk/technology/2010/aug/19/facebook-places-location-tool-unveiled

ASA throws CAP at asterisked profanities

The Advertising Standards Agency (ASA) last week ruled that an expletive in an advert could still be considered offensive even if it was partly obscured by asterisks. The judgment came in response to two complaints made over The Fuel Agency Ltd’s direct mailing campaign. The marketing agency sent out 1000 valentine’s cards reading “I F**CKING LOVE YOU” on the front. Inside the card was the phrase “…You might f**king love us”. The Fuel Agency Ltd argued that it was commonly accepted that an expletive masked by asterisks does not cause offence.


Dismissing this viewpoint, the ASA Council adjudicating considered that it breached the decency clause in the Committee of Advertising Practice (CAP) Code. Clause 5.1 states that “Marketing communications should contain nothing that is likely to cause serious or widespread offence.” It stipulates that “Compliance with the Code will be judged on the context, medium, audience, product and prevailing standards of decency.” The Council held that although the swear words were partially obscured, the meaning was still clear. It considered persuasive the fact that the ad was positioned on the front cover of untargeted direct mail, and noted that use of the expletives was gratuitous as it was unrelated to the product being advertised.


The consequence of the Council’s finding means that the offending ad must not appear again in its current form. The Fuel Agency Ltd is also under caution to ensure that future ads do not cause serious or widespread offence.

Further Reading
http://asa.org.uk/Complaints-and-ASA-action/Adjudications/2010/8/The-Fuel-Agency-Ltd/TF_ADJ_48884.aspx

Asda “living dangerously” with in-store optician ads

Using an advertising campaign that intentionally mimics a competitor, and invites customers to draw a comparison between the two services may approximate “living dangerously”, but does not in itself amount to trademark infringement. In what was a disappointing outcome for Specsavers, the High Court was only willing to accept one of the three claims against the supermarket chain, Asda.

As the logo for its in-store optician, Asda chose two oval shapes indicative of a pair of spectacles. The Specsavers’ logo uses the same idea. However, whereas the ovals are positioned side-by-side in Asda’s logo, in Specsavers’ the ovals overlap in the middle. Underlining the mimicry, Asda adopted the pale green hue favoured by Specsavers as the colour for its logo. Despite these similarities the court was unwilling to accept Specsavers’ argument that the logo amounted to an infringement causing confusion.

Factors persuading the court in Asda’s favour included the fact that, since Specsavers had not registered their mark in a specific colour, the colour of the mark in question was an irrelevant issue. It was also noted that although the ovals were similar and formed an important part of the logo, this was not the dominant aspect. The court held that the wording “ASDA optician”, written inside the ovals, formed the active part, and thereby introduced a significant difference from the claimant’s brand. This meant that a ‘reasonably circumspect consumer’ would not be confused by the two logos. The evidence that Asda was intentionally “living dangerously” did not alter this conclusion.

Where Specsavers did succeed was in its claim that the strapline - “be a real spec saver at Asda” - took unfair advantage of the distinctive nature of their trademark. The court held that, wishing to establish a reputation for value, Asda had used a strapline which clearly called to mind “Specsavers” in order to gain an unfair advantage. The court dismissed Specsavers’ third claim that Asda was guilty of passing off. Since none of the marks gave rise to confusion, the element of misrepresentation that lies at the very heart of any such claim was missing.

Further reading:
Specsavers International Healthcare Ltd v Asda Stores Ltd [2010] EWHC 2035 (Ch)
http://your.asda.com/2010/8/2/judge-rules-you-can-get-spec-savings-at-asda

Budvar triumph in Budweiser’s Battle for Europe

Last week the European Court of Justice found in favour of Budĕjovický Budvar, against Anheuser-Busch in what has amounted to a 14-year-long trademark battle between the two breweries. The present dispute began in 1996 when the US-based brewer, Anheuser-Busch (now owned by Belgium’s InBev) applied to the Office of Harmonization for the Internal Market to register ‘BUDWEISER’ as a Community trademark for beer. The Czech brewery opposed the registration on the basis that it had the right to use the same trademark in Austria, Benelux, France, Germany and Italy.

The judgment marks the latest in a series of successes for the Czech brewery which has fought its American rivals globally in a branding war that has lasted for over a century. The German immigrant, Adolphous Busch, first used the brand name to promote beer in North America in 1875. However, when he applied for US registration in the early 1900s, Budvar tried to sue them on the grounds that they had been using the name since 1895. An agreement was eventually arrived at, whereby each brewery’s market was limited to either the Americas or Europe. However, with the subsequent expansion of the companies’ markets, this was to be a short-term truce.

In this latest dispute, Europe’s highest Court found that since Budvar was able to prove genuine use of the earlier international word mark ‘Budweiser’, Anheuser-Busch is prevented from registering the trademark across the whole of the EU. Although it cannot get a blanket trademark, it may retain the right to use the trademark in individual EU markets. However, Budvar has won the exclusive right to use the Budweiser name in Austria and Germany. This situation of exclusivity differs from that in the UK, in which both companies have been allowed to use the same trademark under the doctrine of “honest concurrent use”.

Further reading:

Case C 214/09 P, JUDGMENT OF THE COURT (Fourth Chamber), Anheuser-Busch v OHIM 29 July 2010
http://www.eubusiness.com/news-eu/us-czech-court.5rz
http://www.brandchannel.com/features_effect.asp?pf_id=191
http://www.budweiserbudvar.co.uk/budweiser
Budejovicky Budvar NP v Anheuser-Busch Inc [2009] EWCA Civ 1022 (CA)

“small, squat, smiley-faced, bowler hatted blimp” protected by the courts

On 28th May 2010, the High Court held that Qualtex Ltd, which threatened to manufacture and sell vacuum cleaners replicating Numatic International Ltd’s successful ‘Henry’ model, was guilty of the tort of passing off. The dispute arose in 2008, when Qualtex informed Numatic of its intentions to manufacture and sell replicas of the bowler-hatted, tub-style vacuum. Qualtex based its decision on the understanding that all relevant intellectual property rights (in the form of registered and unregistered design rights) associated with the model had expired.


The tort of passing off exists to prevent an individual from misrepresenting his goods or services as belonging to, or being associated with another person. A successful claim requires the plaintiff to establish that goodwill has attached to his product; that the defendant has lead the public to believe that his products belong to the plaintiff through misrepresentation; and that he has or is likely to suffer damage as a result of the misrepresentation. What makes this case remarkable is that the court was asked to consider whether sufficient reputation and goodwill existed in the shape or get-up of the product to warrant protection, even after registered design rights have expired.


Citing a newspaper article, which describes the Henry as a “small, squat, smiley-faced, bowler hated blimp on casters” and noting market research commissioned by Numatic, Mr Justice Floyd found that “[t]he public have been educated to recognise the overall shape combined with the black bowler hat as indicia of a genuine Henry.” This being the case, Qualtex’s defence that it had not intended to use the distinctive Henry “face” on the replica, and that it would use a different brand name to alert the public to the fact that the product was not a genuine Henry, were not held to be persuasive by the Court.


Further reading:

Numatic International ltd v Qualtex UK Ltd [2010] EWHC 1237 (Ch)
http://plc.practicallaw.com/3-502-8832
http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/7216-Henry-has-his-day-in-court.htm

Nintendo DS ‘game copier’ chips fall foul of copyright law

The High Court in London has held that devices allowing users to run pirated games on Nintendo DS consoles are illegal in Britain. The storage devices, which slot into a Nintendo DS like a game card, contain either a built-in memory, or a slot for a micro-SD flash card. Using circuitry, software and data, the devices are able to circumvent the copy-right protection measures installed onto Nintendo consoles.

Games which have been illegally downloaded from the internet may then be stored on the memory card and played on the DS.

Finding against the defendants, Playable Ltd - a company which imports and sells the devices - and its sole director and share holder, Mr Wai Dat Chan, the Court held that they were guilty of circumventing copyright protection technology under s.296ZD of the Copyright, Designs and Patents Act. The Court was unwilling to accept the defence that the devices can also be used for lawful activities, such as playing home-made games. Even if this were the primary use, in order to enable such games to be played on the console, the device would still have to circumvent the effective technological measures (ETM) used by Nintendo.

The Judgment highlighted that HMRC and Trading Standards had seized over 165,000 game copiers intended for use by Playable Ltd. With devices available for as little as £10, and since each device is capable of storing multiple games (which would otherwise retail individually for as much as £20-£30 on release), the Court noted the “substantial” economic effect that the trading of these devices would have on Nintendo.



Sources:

http://www.guardian.co.uk/technology/gamesblog/2010/jul/28/games-controversy
http://www.bbc.co.uk/news/technology-10790835
Nintendo Co Ltd v Playables Ltd [2010] EWHC 1932 (Ch)