Advocate General says comparative advertising is not a matter of trade mark law

According to Advocate General Mengozzi, trade mark infringementis not relevant in assessing the legality of a third party'suse of an identical trade mark or similar sign in comparativeadvertising, but such advertising is governed exhaustively byArticle 3a of the Misleading Advertising Directive (84/450),as amended by the Comparative Advertising Directive (97/55)(‘CAD’).     

Questions referred to the ECJ regarding scope of protection against allusive packaging and use of registered marks on comparison lists

The Court of Appeal is referring a number of questions to theECJ, including questions concerning the scope of protectionfor registered trade marks and the meaning of ‘unfairadvantage’ for the purposes of the Trade Marks Directiveand the Comparative Advertising Directive.     

The new consumer and business protection regulations: another string to the brand owner's bow?

Legal context: This article assesses the impact of The Consumer Protectionfrom Unfair Trading Regulations 2008 (CPRs) (implementing theUnfair Commercial Practices Directive) and The Business. Protectionfrom Misleading Marketing Regulations 2008 (BPRs) (implementingthe consolidated and codified Misleading and Comparative AdvertisingDirective) on areas of marketing and advertising in which IPrights often become involved and the impact of the recent ECJdecisionon their application in the O2 v Hutchison 3G referencebythe Court of Appeal. Key points: The CPRs govern advertising and promotional activities aimedat consumers. Much of the consumer and business protection legislationpreviously scattered amongst various Acts has been repealedand replaced by elements of the BPRs or CPRs. In total, 36 Regulationsand Orders and 41 Acts are affected. The BPRs now govern misleadingmarketing and comparative advertising, previously dealt withunder the Control of Misleading Advertising Regulations 1988.The article looks at how these Regulations may be applied insituations which interested parties currently attempt to resolveusing trade mark or passing off laws. Practical significance: The new Regulations are aimed at the protection of consumersand businesses from unscrupulous marketing and trade promotionpractices which affect their economic behaviour. Thirty-onepractices are specifically identified as automatically fallingfoul of the Regulations. Businesses will need to review theirpractices to avoid the possibility of criminal penalties includingfines and imprisonment for consenting, conniving, or recklessofficers of businesses involved in such practices. Until the ECJ decision in O2 v Hutchison 3G, it had been thought(from Jacob LJ's finding in his reference to the ECJ in thiscase) that trade mark law had no role to play in comparativeadvertising as it was specifically provided for under the ComparativeAdvertising Directive and hence under the BPRs. Since thesedid not provide an individual right of action (the OFT or TradingStandards alone may enforce), it left trade mark owners withlittle muscle in comparative advertising situations. However,the ECJ made clear that where practices fail to satisfy thecriteria set out in the Directive for legitimate comparativeadvertising, trade mark law may be invoked as a remedy. Thiswill be a relief to major brand owners for whom comparativeadvertising is commonly a concern.     

The implications for trustees of the possible EU Savings Directive reforms

The EU is considering making the Savings Directive more effective.One measure could be redefining trustees for the purpose ofthe Savings Directive and adopting the definition used in theThird Eu Money Laundering Directive.     

Understanding the rule of prevalence in the NIS directive: C-ITS as a case study

The paper discusses the interpretation of the rule of prevalence of Article 1 (7) NIS Directive, which has not been the subject of any academic debate so far. Article 1 (7) NIS Directive organises the interface between the NIS Directive regime and other European Union sector-specific legislations imposing (cyber)security obligations, by laying down the conditions according to which such obligations would prevail over the NIS Directive regime. Based on the case study of the recent proposal from the European Commission to regulate Cooperative Intelligent Transport Systems (‘C-ITS’), the paper unravels a number of issues and unclarities. Recommendations are made with respect to the interpretation and application of the rule of prevalence of Article 1 (7) NIS Directive. In anticipation of a potential future C-ITS regulation and in the context of a possible upcoming revision of the NIS Directive, the paper also makes suggestions to ease the regulation of the interface between the NIS Directive and other (cyber-)security regulation, particularly in the field of C-ITS.     

Privacy and social networks

This article discusses the complex relationship between social networks and the EU Data Protection Directive (95/46/EC). After a concise introduction to the general privacy impact of social networks, it discusses how the Directive applies to users and operators of social networks and social network applications. Particular attention is drawn to the scope of the Directive (including the “household” exception), the obligations imposed on data controllers, the interpretation of the Directive by Working Party 29, as well as the difficulties that are encountered when applying the aging Directive to the technological reality of today’s social networks.     

The implementation of Directive 2001/20/EC into Belgian law and the specific provisions on pediatric research

The European Clinical Trial Directive (2001/20/EC) was implemented into the Belgian legal system by the Law of 7 May 2004 concerning experiments on the human person (LEH). Apart from implementing the European Directive, this law also broadens the scope of the Directive from interventional clinical trials to all medical experiments involving human persons. This article offers an overview of the requirements for involving minors in medical experiments that are captured in the LEH, illustrates the process of protocol review by an ethics committee, and discusses the dissimilarities between the LEH and the European Directive.     

The European Biotech Directive: Past as Prologue

The directive on the legal protection of biotechnological inventions (the ‘Biotech Directive’) represents the end of a decade‐long dialogue on how best to encourage biotechnology innovation in Europe while addressing ethical concerns. The Biotech Directive represents an interesting compromise between Parliament, Commission, and Council based on divergent policy concerns, treaty limitations, and international trade rules. In this article, the authors explore the meaning and implication of the Biotech Directive by examining its contentious history, its provisions, and its jurisdictional foundations. Drawing on this base, the authors examine questions left unanswered by the Biotech Directive and analyse how the Biotech Directive fits in with existing international law.     

The Cyprus and other EU court rulings on data retention: The Directive as a privacy bomb

This paper discusses the controversy surrounding the Data Retention Directive with an emphasis on the 2011 decision of the Cyprus Supreme Court which has annulled several district court orders that allowed the police access to telecommunications data relating to certain persons relevant to criminal investigations. The annulment has been on the ground that the legal provisions upon which the orders have been issued are unconstitutional. It will suggest that the decision does not entail a direct rejection of the EU Data Retention Directive and that in any event, Cyprus is not a Member State resisting the particular measure. This is because the legal provisions are deemed unconstitutional, though part of the law that has transposed the relevant Directive into national law are provisions that go beyond what the EU legislator intended to regulate through that Directive. Still, the particular Directive sits rather uneasily within the ‘human rights’ regime, in particular the one governing the individual right of privacy.     

The Proposal for a Directive on the Patentability of Computer-implemented Inventions

The European Commission Proposal for a Directive on the Patentability of Computer-implemented Inventions is an important step towards harmonising and clarifying the patent protection available for such inventions in European Member States. This paper discusses the proposed Directive, its potential impact and some initial reactions from those in the software industry. It outlines the background to the Proposal, discussing briefly the exclusion of computer programs 'as such' from patent protection under the European Patent Convention (EPC). The paper observes that, in its current form, the proposed Directive will narrow the protection currently available to patentees and that some thought should be given to transitional provisions. It concludes that, whatever balance is struck as the Directive progresses to adoption, the Directive will have the benefit of providing a mechanism for aligning the approach of European Member States to patenting computer-implemented inventions. 'Educational initiatives' may, however, be required if European companies, in particular Small and Mediumsized Enterprises (SMEs), are, as intended by the Commission, to view the harmonization and greater transparency provided by the proposed Directive as an incentive to use patents to exploit their computer-implemented inventions.     

The new media landscape: Regulating the idiot boxes

The European Commission has proposed a modernization of the Directive 89/552/EEC, also known as the TV without Frontiers Directive (TVWF). The draft Audiovisual Media Services Directive suggests extending regulation to cover a broad range of new and emerging audiovisual media services. The proposal unleashed fierce opposition from all sectors. The most contentious issue concerns the distinction between the two types of audiovisual media services (linear and non-linear), which are distinguished from each other by the degree of user control. The Commission has failed to provide any convincing argument to prove the necessity of imposing a new regulation and the inadequacy of the current regulatory framework. This paper analyses the proposed Audiovisual Media Services Directive.     

An inquiry into the legal status of the ECOWAS cybercrime directive and the implications of its obligations for member states

On 19 August 2011, the ECOWAS Council of Ministers adopted Directive C/DIR.1/08/11 on Fighting Cybercrime at its Sixty Sixth Ordinary Session in Abuja, Nigeria. The adoption of the Directive at that time arose from the need to tackle the growing trend in cybercrime within the ECOWAS region, as some Member States were already gaining global notoriety as major sources of email scams and Internet fraud. Accordingly, the Directive established a legal framework for the control of cybercrime within the ECOWAS region, and also imposed obligations on Member States to establish the necessary legislative, regulatory and administrative measures to tackle cybercrime. In particular, the Directive required Member States to implement those obligations “not later than 1st January, 2014″. This article undertakes an inquiry into the legal status of the Directive as an ECOWAS regional instrument in the domestic legal systems of Member States.In this regard, the article examines whether the requirement regarding the superiority or direct applicability of ECOWAS Community laws such as ECOWAS Acts and Regulations in the domestic legal systems of Member States also apply to ECOWAS Directives such as the Cybercrime Directive. The article also examines the legal implications of the Directive's obligations for Member States. The article argues that while some Member States have not implemented the obligations under the Directive, that those obligations however provide a legal basis for holding Member States accountable, where the failure to implement has encouraged the perpetration of cybercrime that infringed fundamental rights guaranteed under human right instruments such as the African Charter on Human and Peoples’ Rights or under their national laws.     

欧盟利息税指令及其对我国的借鉴

利息税是影响资本流动的一个重要因素,欧盟长期以来致力于协调成员国间的利息税制度。欧盟利息税指令的出台历经坎坷。利息支付情况的信息交换制度是该指令的核心,同时指令还在过渡期内规定了可选择的预提税制度,从而有效地协调了支付地国、税收居民国和受益人之间的利益。指令在对利息支付的定义、预提税的计算以及祖父条款的适用方面存在一定的问题,还需进一步完善。指令对我国利息税制度的健全完善尤其是利息税协调制度的建立有着重要的借鉴意义。     

The economic costs and consequences of mass communications data retention: is the data retention directive a proportionate measure?

This article seeks to determine the economic costs and consequences of implementing the Data Retention Directive (Directive 2006/24/EC), an extraordinary counter terrorism measure that mandates the a priori retention of communications data on every European citizen, by drawing on the insights of economic analysis. It also explores the monetary costs of the Directive on subscribers and communications service providers of Member States within the EU. Furthermore, it examines the implications of the Directive on the economic sector of the European Union, by focusing on the Directive’s impact on EU competitiveness and other EU policies such as the Lisbon Strategy. This analysis is motivated by the following questions: what are the monetary costs of creating and maintaining the proposed database for data retention? What are the effects of these measures on individuals? What obstacles arise for the global competitiveness of EU telecommunications and electronic communications service providers as a result of these measures? Are other policies in the European Union affected by this measure? If so, which ones?     

Free movement of patients: Directive 2011/24 on the application of patients' rights in cross-border healthcare

This contribution comments on Directive 2011/24, providing a legal framework for cross border healthcare 13 years after the famous Kohll and Decker case law. The Directive contains provisions concerning the reimbursement of costs, the responsibilities of the Member States and their mutual cooperation in healthcare. Analysing the (potential) impact of the Directive 2011/24 on EU healthcare systems, patients and healthcare providers, it becomes clear that the impact of the Directives reaches far beyond patient mobility. The Directive creates patients' rights, pays attention to the quality and safety of healthcare services and creates an excessive structure of cooperation in the field of healthcare. The European Union seems ready to use its economies of scale to improve healthcare for all European patients.     

The EU Restriction of Hazardous Substances Directive: Problems arising from Implementation Differences between Member States and Proposed Solutions

Directive 2002/95/EC, the Restriction of Hazardous Substances or 'RoHS' Directive, restricts the use of environmentally hazardous substances in electrical and electronic equipment distributed and sold in the EU from 1 July 2006. The Directive's objectives are to harmonize EU Member States' national legislation and protect human health and the environment. This article reveals differences in the implementation of the RoHS Directive at the time it took effect. Differences were revealed in the analysis of results obtained from telephone interviews conducted with all but four of the 25 EU Member State RoHS enforcement officials. Differences in implementation created barriers to the achievement of the RoHS Directive's objectives and caused problems for producers of electrical and electronic equipment. The article attributes the principal cause of differences in implementation to insufficiently detailed text in the RoHS Directive. The article also considers how barriers and problems could have been prevented and makes proposals to solve them.     

Implementing the artist's resale right directive

Legal context: Directive 2001/84/EC, on the resale right for the benefit ofthe author of an original work of art, introduced the harmonisationof artist's resale right within the EU (and subsequently withinthe EEA). Resale right already existed in many EU States, butthe Directive also required its creation in others (such asthe UK) to which it was previously unknown. The implementationof the Directive in the UK was accordingly a matter of somecontroversy. Key points: This article concentrates on the legal difficulties involvedin that implementation, viewed against the background of theUK Government's stated general policy on the transposition ofEU Directives. From several points of view, the rules laid downin the Directive called for elaboration or clarification, andin a number of cases such an approach was appropriate. In othercases, however, this turned out not to be appropriate. Practical significance: As a result, although in the main it was possible to transposethe Directive into a clear and workable set of domestic rules,a number of issues had to remain unresolved. Among the mostimportant were: whether works of ‘applied art’ shouldattract resale right, and the territorial scope of the transactionscovered by the right.     

欧盟对分时度假及相关产品的法律规制

欧盟主要通过《分时度假指令》和《不正当商业做法指令》对分时度假产业进行法律规制,《分时度假指令》赋予消费者对购买分时度假产品合同的撤销权,《不正当商业做法指令》则禁止销售商在销售分时度假产品及相关产品时的不正当商业做法。由于《分时度假指令》的适用范围过于狭窄,欧盟已提出了对其的修改建议。总结欧盟规制分时度假产业的经验,我国应对分时度假产业进行法律规制并结合行业自治。     

The Revised Directive on Waste: Resolving Legislative Tensions in Waste Management?

The revised Directive on waste (Directive 2008/98/EC) enteredinto force on 12 December 2008. The purpose of the revised Directiveis to simplify the existing legislative framework for wastein order to encourage the divergence of waste away from landfills,to strengthen legal certainty and minimise burdens on businesses,regulators and stakeholders. This article explores the mainfeatures of the revised Directive and assesses them againstthe European Commissions' intentions in introducing the Directive.In addition, the paper considers the extent to which the revisedDirective promotes successfully (i) reduction of natural resourceuse, (ii) prevention of environmental impacts of waste generation,(iii) life-cycle thinking and; (iv) securing waste prevention.The paper concludes that there is still room for further clarification,particularly in relation to the criteria for by-products andthe new waste management terms ‘end of waste’ and‘preparing for re-use’. Whilst the revised Directivehas weaknesses and limitations it should be considered withinthe context of decision-making. In this way it represents amulti-party, multi-institutional and multi-national compromisewhich should be considered as a progressive step towards improvingthe whole life-cycle of products and resources. Undoubtedly,the revised Directive sets the tone for future legislative developmentsand bolsters the importance of extended producer responsibilityin future waste management measures.     

The pan-European retail market are we there yet?

The first 150 words of the full text of this article appear below. Key points

• When the EU Prospectus Directive was introduced inlate 2003, there was great optimism that it would finally leadto the long awaited pan-EEA retail capital market.
• This articleasks whether the Directive has achieved this result and looks,in particular, at the disclosure regime relating to the admissionof debt securities to EEA-regulated markets and the public offeringof such securities in the EEA.
• A number of impediments to thecross-border retail market, that are completely separate fromdisclosure, are examined.
• In conclusion, the article discusseswhether, in fact, expectations for the Prospectus Directivein this area were set too high and could never be met and looksat what more needs to be done in order to achieve the goal ofa single retail debt market in the EEA.