But could an American in Rome also use the .eu?
[:en]On date 12 July 2012 the European Court of Justice issued a very interesting ruling in the field of internet law and e-commerce. Specifically, it stipulated that top-level domains (Tld - top level domain) ".eu" are only reserved for companies that have "its registered office in the territory of the EU'..
In particular, under EU law (Article 12 of Regulation No 874 of 2004) registration of the Tld '.eu' can only be applied for by the "domain names [...] of registered national trade marks, registered Community trade marks, [...] and holders or licensees of prior rights."
The Court of Justice, in interpreting the above-mentioned rule, considered that for "licensees of pre-existing rightsi' may not include companies or persons from the european union who limit themselves, at the request of a trade mark proprietor established in a third country, to registering the trade mark without being allowed to use it in the course of trade.
The present case, to make the matter clearer, involved a American society(Wlash Optical), which is active in the online sale of contact lenses and other eyewear. It has operated www.lensworld.com since 1998 and became the owner of the Benelux Lensworld trade mark, registering it on 26 October 2005. In November 2005, it decided to enter into a licence agreement with Bureau Gevers, Belgian company advising on intellectual property issuesto register the domain 'lensworld.eu' in its name, but on behalf of Walsh Optical itself. at the UERid.
One year later, Pie Optiek, a Belgian company competing with the American company, also applied for registration of the website "www. lensworld.eu." This request is, however, rejected.
Pie Optiek therefore brought an action against the American company, claiming that, as it was based in a third country, it was not entitled to use the .eu domain. The court of first instance dismissed the action. Pie Optiek appealed against the judgment. The Brussels Court of Appeal referred the case to the Court of Justice requesting an interpretation of Article 12(2) of Regulation No 874 of 2004. The Court thus holds that a person who is merely authorised by the proprietor of the trade mark, established in a non-member country, to register in his own name, but on behalf of the licensor, a domain name identical or similar to the trade mark itself, without, however, being permitted to make commercial use of it, cannot be regarded as a licensee of prior rights.
The Court notes on this point how the .eu top level domain was created in order to increase the visibility of the internal market in virtual Internet-based tradeby offering a clearly identifiable link to the European Union, the associated regulatory framework and the European market, and by allowing EU companies, organisations and natural persons to register in a domain that makes this link obvious.
For this reason, domain names should only be registered if requested by any party that meets the criteria of presence in the territory of the European Union. More precisely, by companies that have their registered office, central administration or principal place of business in the territory of the Unionby any organisation established in its territory as well as by any natural person residing in the territory of the European Union.
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There is a Frenchman, a Spaniard, an Italian and YouTube.
[:en]Can YouTube broadcast clips from a television channel on its platform? And if so, what role does it play from a civil law point of view? These certainly highly relevant and important questions were answered by the Tribunal de grande instance of Paris.
French judges have come to decide on a dispute brought by the television company TF1, which was claiming damages of €150 million from YouTube for violation of the Intellectual Property Code. In particular, of Article 216-1, which makes the diffusion and retransmission of an intellectual work subject to the authorisation of the rights holder, and of Article 1382 of the Civil Code (corresponding to our Article 2043 of the Civil Code governing non-contractual liability).
The transalpine judges decided to reject all of TF1's claims and ordered TF1 to pay EUR 80,000 in legal fees.
The ruling is interesting in that it states that "the economic model developed by the YouTube company in its as a hosting provider is neither prohibitednor unlawful and no diversion of customers"can be imputed to it. According to the French judges, in fact, YouTube and television constitute two different types of business.
Clarity is also provided on the of YouTube, which would remain mere hosting not being in any way assimilated with publishing.
The plaintiffs on this point had observed that YouTube performs activities beyond those typical of thehosting. For example, YouTube implements a prior check aimed at blocking and censoring certain content that YouTube "considers contrary to its editorial line"Google also automatically acquires the copyrights necessary to exploit the content posted by users. Despite these observations, the Court stated that these circumstances, would not be suitable and sufficient to qualify the web giant as a 'publisher'.
Finally, the judgment retraces what has already been affirmed by the Spanish case law of the Juzgado de lo Mercantil in Madrid, 20 September 2010which disclaimed any responsibility on the part of YouTube for the content posted by users (see also "The hosting contract and the hosting provider's liability profiles e Responsibility of the search engine in the case of 'caching' (if you can)).
On this point he also added that the use of the advertisement on some of the published videos would not be sufficient in itself to lead to the loss of status intermediary.
Internet operators are therefore mere intermediaries and, as such, cannot be held responsible for the content conveyed by third parties, let alone be equated with publishers.
Ultimately, it is felt that the european case law is finally moving towards a difficult framing of the duties and responsibilities of search engines and hosts.
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Responsibility of the search engine in the case of 'caching'.
In May this year, the Industrial Property Section of the Court of Florence had to decide on a very interesting issue for all web users. The case is easily summarised: Titius, entrepreneursurfing the web he discovers a site in which photos of him are reproduced and defamed their company name.
Since the webmaster or site operator could not be traced from the site, he decided to contact Google Inc. directly (US headquarters), asking them
by remove the link from the search engine to the disputed site. Following the rejection of GoogleTitius decides to bring an action.
On 12.5.2012, the Court of Florence issued an order excluding Google's liability for the following reasons:
- the activity of search engines is a mere caching, formerly Article 15 of Legislative Decree 70/2003;
- the search engine is obliged to remove links only by order of the competent body.
Dwelling briefly on the first point, it may be noted that the ordinance is of the opinion that search engine caching is a mere caching activity, since it is limited "indexing of sites and caching of their content, with temporary storage of information". Internet operators, therefore, appear to be mere intermediaries and, as such, not can be considered responsible for content conveyed by third parties.
As to the second point, the order focuses on the obligations of search engines when they receive requests to remove or disable access to certain content. The Court states on this point that "theactual knowledge of the alleged unlawfulness of the content of the website in question cannot be deduced even from the content of the party's warnings, since they are unilateral statements."
Moreover, about the knowledge of offences, these are not presumed on the basis of mere complaints by network usersbut it is necessary that a "competent body declared the data to be unlawfulor ordered the removal or disabling of access to them, or that a damage has been declared to exist'. or, again, 'that the ISP itself is aware of such a decision of the competent authority. "
This decision seems to replace the previous jurisprudential orientation that, applying legislative decree 70/2003 extensively, considered it sufficient for the subject to communicate to the intermediary the link of the site containing the allegedly infringing material.
This orientation, in the opinion of the writer, rightly overtaken by the order under review, which is, moreover, very important in the sector, since clear directives are issued and the liability of legal figures that are not yet completely well defined is firmly delineated.
Defamation on Facebook. Better watch out, that if the car runs out of petrol....
[:en]Facebook, a space of great social and commercial interest. A new way to share one's thoughts, ideas and business insights. A new multimedia piazza.
This statement, which at first might appear to be a mere assertion of "para-sociopolitical" is actually becoming increasingly of legal interest. Indeed, one wonders what can happen if one posts an offensive comment on their profilefalse or simply vulgar? Is it to be assumed that such conduct is actually carried out in a public place or even in the press?
This question, which as you can understand, is no longer of little interest, was answered on 1 October by the Court of Livorno. The Court on this point decided the conviction of a woman for "defamation", with the aggravating circumstance ".print media"because she insulted her former employer (who had fired her) on her Facebook profile.
The Court of Livorno, has therefore created a new orientation in the jurisprudence on the merits, going against a jurisprudential orientation of the Supreme Court, according to which "for the purposes of the configurability of a criminal offence committed by means of the press, the definitions that Article 1, Law No. 47 of 1948 provides of the press and printed matter are not susceptible to analogical and/or extensive interpretation."
It will therefore be necessary for each user to pay more and more attention to the comments posted on FB, since these not only have purely social and relational consequences, but may even profile possible civil and criminal liability.
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The chain of Saint Anthony is broken. At this point, does the devil still wear Prada?
[:en]A few days ago, the Court of Cassation addressed a topic that is now part of everyday language: spam. This activity, also known as the "chain letter"is a vehicle used by many companies in order to recruit the largest number of people for economic purposes. The classic example and technique used is to entice surfers to subscribe to a service in exchange for a
homage.
In an attempt to stop this practice, the Supreme Court has ruled that the behaviour of website owners who focus their business on paying incentives to subscribers for the sole purpose of get data from new subjectsis to be regarded as unlawful in fact.
Specifically, the Court stated with Judgment No. 37049 of 2012, that "the conduct of the owner of websites focusing on the payment of incentives to members on the basis of the mere recruitment of new persons rather than on the sale of specific goods or services is unlawful".
The basis of this reasoning is mainly centred on the prohibition of 'pyramid selling' in theArticle 5 of Law 173/2005. This practice, in fact, is based on the propaganda activities of core business structures, focused exclusively on increasing the ranks of users and not on the promotion of any service or product.
Importantly, this practice is also unlawful if themembership is voluntary, since, as the Court states, 'the incriminating provision does not require involuntary adherence as a precondition for the existence of the offence'.
Interesting to see how this principle can and will be applied to the new world of social-network, certainly very suitable platforms for the development of such activities.
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The hosting contract and the hosting provider's liability profiles.
[:en]In recent years, the website is no longer a simple showcase used by companies to provide general information and indications on a company's activities, but rather a medium and tool for work and promotion.
Before addressing the contractual type of 'website creation', I consider it necessary to go into a very brief analysis of what is the basis of this entire contractual relationship, the ground on which web designers, in fact, carry out their activity: the web hosting contract. Just as land is needed to build a building, in the same way, web space must be acquired to publish a site. The basis of all this is therefore the so-called 'web hosting' contract, which could be defined as the contract by which a party acquires space on one or more servers owned by a hosting provideragainst payment of a fee.
The web hosting contract falls into the category of atypical contracts, i.e. those contracts that are not regulated and governed directly by the civil code, and ultimately consists of a provision of services. The hosting provider, more specifically, makes space available to another party on one or more computers to host pages web.
One of the most legally relevant elements in this type of contract certainly concerns the provider's liability for the data stored on its servers by the operators of the sites with which it has concluded a hosting contract.
This profile is regulated by Article 16 d.l. 70/2003 (legislative decree by which the Italian legislator transposed the EU directive 2000/31 EC). Pursuant to that article:
in the provision of an information society service consisting of the storage of information provided by a recipient of the service, the provider is not responsible for information stored at the request of a recipient of the serviceprovided that this provider:
a) is not actually aware of the fact that the activity or information is unlawful and, as far as claims for damages are concerned, is not aware of facts or circumstances that make manifest the unlawfulness of the activity or information;
b) not as soon as they become aware of these facts, upon notification by the competent authorities, act immediately to remove the information or to disable access.
L'Article 17 of the decree also provides that
the lender is not subject to a general surveillance obligation information it transmits or stores, nor to a general obligation to actively seek out facts or circumstances indicating the presence of unlawful activities.
In this regard, an important 2009 judgment of the Court of Romein which the Court sought to clarify and specify the scope of the aforementioned legal provisions, stating that "although the Internet provider is not subject to a general obligation to monitor on stored content, as this would result in unacceptable strict liabilityhe is however subject to liability when it does not merely provide access to the network, but provide additional services (caching, hosting ) and/or set up a control of information and, above all, when, aware of the presence of suspect materialrefrains from ascertaining the unlawfulness and from removing it or if, being aware of the unlawfulness, omits to take action".[1]
The Court, therefore, given that there is no general obligation of surveillance, considered necessary for the establishment of civil liability on its part, the knowledge and awareness on the part of the provider of unlawful information or of facts and circumstances which make that unlawfulness manifest, and the failure to remove that information as soon as it becomes aware of those facts and upon notification by the competent authorities. [2]
The Court of First Instance, in this judgment, takes up the concept of strict liability, according to which a person may be liable for a tort, even if it does not result directly from his or her own conduct and is not attributable to the person's own wilful misconduct or fault. This deviates from the general principle of liability, according to which a precise causal link between the individual's conduct and the tort itself is required.
This article, however, must be regarded as a pure and simple outline of a very complex, detailed and constantly evolving subject. A kind of small explanation of what are the legal relations between new types of subjects. Interesting, however, to see how, although the instruments within society evolve, the categories and legal institutions of the civil code always remain the only true basis for regulating commercial and social relations.
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Good faith in the performance of a contract
In recent years, doctrine and jurisprudence have gone so far as to broaden the concept of good faith in contractual performance, defining more and more extensively what are the actual obligations of the parties at all stages of the contract's performance.
It is a well-established principle that good faith, i.e. mutual loyalty of conduct, must govern the performance of a contract, as well as its formation and interpretation, and accompany it at every stage. This obligation therefore requires consideration to be given to interests that are not the subject of specific protection and to fairness of conduct in the performance itself.
Good faith in the performance of the contract, therefore,
".....is embodied in a general obligation of solidarity requiring each party to act in such a way as to preserve the interests of the other, irrespective of both specific contractual obligationsuali, as from the , this commitment to solidarity finding its primary limit solely in the self-interest of the subject, bound, therefore, to the performance of all legal and/or material acts that are necessary to safeguard the interest of the other partyinsofar as they do not entail an appreciable sacrifice on its part....."[1]
It is also recalled that
".....the conduct in good faith and fairness of the individual contracting party is aimed, in compliance with the balancing of the respective interests, at protecting the positions and expectations of the other party; in this context, it is legitimate to configure as components of the binding relationship the duties instrumental to the satisfaction of the rights of the contracting parties, so that it has been held that even the mere inertia conscious and intentional, which is an obstacle to the fulfilment of the other party's right, adversely affecting the end result aimed at in the contractual settlement of the opposing interests, contravenes the duties of fairness and good faith and may therefore constitute a breach of contract.or".[2]
Therefore, the duty of good faith is not only synonymous with refraining from carrying out acts detrimental to the interests of the other partybut must be interpreted as a proactive obligation of one party to put in place all those attentions aimed at avoid prejudice to the positions of the other contracting party.
It has been held, in fact, that jurisprudence, starting from the assumption that even inaction on the part of a contracting party may cause damage to the other party, has held that omissive conduct may be considered contrary to good faith if it does not appear that the inaction was dictated solely by the contracting party's need not to harm its own interests.
The duty of good faith must lead the parties to conduct themselves in such a way as to preserve the interests of the other contracting party, and the only limit to this obligation is the contracting party's own interest.
For a penny. The new company at 1 euro.
[:en]Talking a few days ago with young entrepreneurs, operating in the start-up sector, we wondered about the actual advantages that the introduction of the new 1 Euro company (SRLS - Società a Responsabilità Limitata Semplificata), introduced on 29.8.2012 by the Dm 138/2012.
To get a clearer idea of the features brought about by the new Art. 2463-bis of the Civil Code, it is recalled that:
- the company may be established by natural persons who have not completed their thirty-five years of age on the date of incorporation;
- the memorandum of association must be drawn up by public deed in accordance with the standard typed model;
- the share capital must be between 1 e 10.000 €, subscribed and fully paid up at the date of incorporation;
- the contribution must be made in money and be paid to the administrative body;
- the directors must be chosen from among the shareholders;
- the memorandum of association and entry in the commercial register are exempt from stamp and secretarial duties and no notary fees are payable (registration tax of € 168 and the annual fee to the Chamber of Commerce must therefore be paid).
Reading the regulatory text and also checking the comments of various blogs, law journals and newspapers, it can be seen that this form does indeed bring cost relief (no notary fees are due), but that it does not actually solve what are the real problems of entrepreneurs under 35, namely:
- preferential tax regimes;
- tools for facilitate access to financing bankers or subsidies state;
It is necessary to remember that the problem of social capital is in fact relative, suffice it to say that the 10 thousand euro of capital required to set up a normal limited company, do not remain frozen in the bank, but may be used by members. In fact, once established, the sum is actually paid into the company's account and can be used to buy machinery, computers, pay salaries and suppliers, register trademarks and so on. Furthermore, if there are at least two partners, it is sufficient to pay EUR 2,500, a sum that can in turn be used for the fulfilments just mentioned.
In addition to this, the costs for starting up a company will always have to be borne by the young entrepreneurs, who, no matter how lean and light the company may be, will still need to invest a few thousand euros to operate it (computers, machinery, suppliers, etc.).
Lastly, it is noted that the memorandum of association, having to be drafted in accordance with the standard typed model, is, according to a first reading of the provision, not subject to any variation. This feature, which certainly makes it possible to avoid notary fees, is in fact a limitation that is by no means negligible. Suffice it to say, in fact, that such standardisation would make it impossible for the company's managing partners to activate all the options that the law allows in the articles of association of an LLC. These include:
the power to grant special rights to shareholders;
- the possibility of agreeing on clauses concerning the transfer of shares in the capital (such as non-transferability, pre-emption, approval, clause disposing of the share in the event of the death of the shareholder, co-sale clause, etc.);
- the possibility of agreeing on causes of termination other than those provided for by law;
- the possibility of stipulating grounds for exclusion from the company;
- the provision, in the case of more than one director, of forms of administration other than the BoD;
- the possibility of providing for a longer deadline for the approval of the budget than the statutory one;
- the possibility of providing for forms of decision-making by the shareholders other than the general meeting;
- the possibility of giving shareholders the competence to decide on matters other than those attributed to shareholders by law;
- the possibility of providing for meeting quorums other than those prescribed by law.
It will certainly be interesting to see how this instrument will be used by new entrepreneurs and to see if this means is an effective incentive for new entrepreneurship.
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The transferability of iTunes products to third parties.
[:it]It is becoming increasingly common and easy for the network user to be driven to buying via the internet products, such as music tracks or films.
The ease of purchase, the possibility of remote access to one's account, the transferability to mp3 players or smart-phones, means that consumers increasingly prefer to use multimedia rather than physical media.
One wonders at this point whether the difference between these two modes of 'purchase' is simply limited to a product choice, or whether there are actual practical-legal consequences.
On this point, the Hollywood actor, Bruce Willis, recently made a criticism that can certainly be a good starting point for a brief legal reflection. Can the iTunes library be bequeathed?
Apple has stated, to the surprise of many users, that such assets are not transferable to third parties.
In fact, following a careful reading of the iTunes Terms and Conditions of Useit is found that not so much the individual files, but the (usage) licences for the digital content are defined as iTunes products. The main difference, therefore, between the purchase of a CD and a digital album is that in the former case, ownership of the physical good is actually transferred, whereas in the latter, one simply buys a licence for use staffhence the licence to use the file itself for purely personal and non-commercial use.
Also, if you read the iTunes Terms and Conditions of Use, you will see that the holder of an iTunes account has no right to modify, rent, lease, lend, sell, distribute, or create the purchased licences, (also referred to as non-transferability clause). Therefore, the account holder has the right to use the files for purely personal purposes, without any possibility of transferring them to third parties and thus bequeathing them.
This topic, which will always appeal to a wider segment of the market, is therefore not without interest, considering that online purchasing increasingly concerns not only music files, but also films and e-books.
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The unlawful use of the 'meta-tag'. Trade mark infringement and unfair competition?
[:it]For meta-tag refers to those keywords, usually encoded in HTML, which, although not shown on screen, are nevertheless used by search engines in order to index the various sites. Through a meta-tagThus, the operator of a site can enter keywords concerning his or her own web page (c.d. keyword meta-tag) in order to make it through the use of search engines.
Potentially, therefore, a site operator could insert the name of a very famous brand as a keyword in order to have its site appear among the first results each time a user performs a search using the name of the well-known brand, or, insert the brand of one of its competitors in order to appear among the results each time a search is performed by a consumer indicating the brand of the competing company as a keyword. (E.g., the company XYZ S.R.L., which operates in the furniture manufacturing sector, uses the trademark of the competitor company 123 S.P.A. as meta-tag)
The question arises in doctrine and jurisprudence as to whether such conduct may in itself constitute an offence, given that the name or trademark of others is not placed externally on the site, but remains visible only to search engines.
There are potentially two possible offences: unfair competition and trade mark infringement.
1. Unfair competition
As for unfair competition, the Court of Milan, in the now well-known 'Solatube' case, ruled that: "the use by a competing company of a 'meta-tag' reproducing the trademark of the legitimate owner company constitutes unlawful competition imputable under Art. 2598 no. 3 civil code.as determining the constant and undue matching in the search results on the various web search engines capable of leading to a diversion of customers in violation of the principles of fair trading."[1]
2. Trademark infringement
The aforementioned judgment, which establishes the existence of a violation of Art. 2598 no. 3 civil code., states that the use by a competing company of a meta tags reproducing the trade mark of another company does not constitute an infringement of the trade mark as it lacks any distinctive function of services and goods.
On the contrary, according to authoritative doctrine, if a party uses as a meta-tag a trademark of one of its competitors, such practice would also constitute a hypothesis of infringement of the exclusive trademark right pursuant to Articles 12 and 22 of the IPC (Industrial Property Code). Such an infringement would, in fact, extend to non-related goods and services if a well-known trade mark is used as a meta-tag.[2] In support of this thesis, part of the doctrine holds that it is also reasonable to recognise the meta-tag advertising function in a broad sense.[3]
3. Subliminal Advertising
Finally, part of the doctrine is inclined to believe that the use of this practice might even be considered as a form of subliminal advertising Article 5.3 legislative decree 145/07, which provides that advertising must be clearly recognisable as such.[4]
REVIEW
- the use by a competing company of a 'meta-tag' reproducing the trade mark of the legitimate proprietor company constitutes an unlawful competition offence imputable under Article 2598 no. 3 of the Civil Code
- according to authoritative doctrine, the use of one's own competitor's trade mark as a meta-tag would also constitute an infringement of the exclusive trade mark right under Articles 12 and 22 of the IPC
- Finally, part of the doctrine is inclined to consider that the use of such a practice could even be regarded as a form of subliminal advertising covered by Art. 5.3 Legislative Decree 145/07
[1] Court Milan, 20/02/2009, Riv. dir. ind. 2009, 4-5, 375 (note TOSI)
[2]Riv. dir. ind. 2009, 4-5, 375 (note TOSI); E. TOSI, Diritto privato dell'informatica, DNT, 12, 490 ff.; CASSANO, Orientamento dei motori di ricerca, concorrenza sleale e meta-tag, in Riv. dir. Ind., Milan 2009, 56
[3] Cf. the TOSI, in the note to the Milan Court judgment of 20.2.2009: "in support of the foregoing, the broad provision of Article 2(A) of Legislative Decree No. 147 of 2 August 2005 [...] states that 'advertising shall mean any form of message that is disseminated, in any manner whatsoever, in the exercise of a business activity for the purpose of promoting the sale of goods, the performance of works or services'.
[4] BONOMO, The domain name and its protection. Typology of confusing practices on the internet, 247 ff.; PEYRON, Internet meta-tags as a new means of trademark infringement and hidden advertising: a US case, in Giur. It., 1998, I, 739 ff.
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