A FEW FACTS YOU NEED TO KNOW ABOUT THE GDPR

As many may know, starting from 25 May 2018, the 2016/679 EU Regulation, known as GDPR (General Data Protection Regulation) - relating to the protection perosnal data will be directly applicable in all Member States.

In a nutshell, the GDPR:

• introduces clearer rules on information and consent;
• defines the limits to the automated processing of personal data;
• lays the foundation for the exercise of new rights;
• establishes strict criteria for the transfer of these outside the EU;
• sets strict rules for data breach cases.

Theses rules also apply to companies located outside the European Union that offer services or products within the EU market. All companies, wherever established, will therefore have to respect the new rules. Companies and institutions will have more responsibility and case of non-compliance with the rules risk heavy penalties.

The "One Stop Shop"

To solve any difficulties, the "one stop shop" rule has been introduced, which will simplify the management of treatments and guarantee a uniform approach. Companies operating in several EU countries may contact the Privacy Guarantor of the country where they have their headquarters.

Data portability

The regulation introduces the right to "portability" of personal data to transfer them from one data controller to another. The rule is an exception in cases where the data are contained in archives of public interest, such as the registry offices. In this case, the right can not be exercised, as is the transfer of personal data to non-EU countries or international organizations that do not meet the security standards for protection.

The principle of "accountability"

There are other important elements of novelty. In fact, the accountability of the data controllers (accountability) has been introduced and an approach that takes into greater consideration the risks that a particular processing of personal data may entail for the rights and freedoms of the interested parties. This new right will facilitate the transition from one service provider to another, facilitating the creation of new services, in line with the Digital Single Market strategy.

Data breach

The data controller must report any violation of personal data to the Guarantor. Responding effectively to a data breach requires a multidisciplinary and integrated approach and greater cooperation at EU level. The current approach has numerous flaws that need to be corrected. It is not simple but it is necessary to do so in order not to lose the opportunity provided by the GDPR. The first fulfillment to be put in place for Italian companies is certainly the adoption of the Register of processing of personal data, but even before the bureaucratic queries, the company must understand the importance and value of the data, as well as the huge economic damage due to a loss of information If the data breach poses a threat to people's rights and freedoms:

The owner must inform all interested parties in a clear, simple and immediate manner and offer indications on how he intends to limit the damages;

You may decide not to inform interested parties if you believe that the violation does not pose a high risk for their rights or if they demonstrate that they have already taken security measures; or, finally, in the eventuality in which to inform the interested ones could involve a disproportionate effort to the risk. In this last case it will have to provide with a public communication;

The Guarantor Authority may in any case require the data controller to inform the data subjects on the basis of an assessment of the risks related to the violation committed.

The figure of the DPO (Data Protection Officer)

It is no coincidence that the figure of the "Data Protection Officer" (Data Protection Officer or DPO) was set up, responsible for ensuring the correct management of personal data in companies and institutions and identified according to professional qualities and specialized knowledge of the legislation and data protection practice.

The Data Protection Office reports directly to the company’s summit and is independent, as it does not receive instructions regarding the execution of the tasks.

In reality there are still too many doubts on the figure of the DPO is. It is a relevant figure, but certainly it is not the "center" of the system established by the GDPR, which in the new system is always the Data Controller. The DPO must have a specific competence "of the regulations and practices concerning personal data as well as the administrative rules and procedures that characterize the sector". It is no less important, however, that it also has "professional qualities appropriate to the complexity of the task to be performed" and, especially with reference to sensitive sectors such as health, can also demonstrate specific competences with respect to the types of treatment put in place to the holder. The decision-making autonomy and the extraneousness of the DPO with respect to the determination of the purposes and methods of data processing is equally important if we want to return to those affected that sovereignty over the circulation of their data.

THE COURT OF TORINO ON THE PROTECTION OF KWAY'S THREE BAND STRIPE.

The Court of Torino recently ruled in a lawsuit promoted by Basic Net, owner of the well-known brand K-Way, against Giorgio Armani due to the marketing, by the latter, of products bearing the known K-Way colored.

Basic Net is the owner of a registered color Community trade mark which reproduces the famous colored strip which characterizes the clothing items branded by K-Way.

In its decision, the Court of Turin shared the arguments of the Court of the European Union concerning the application for registration of Basic Net’s Community figurative mark consisting of strips. On this occasion, the Court of Torino confirmed the rejection of the application for registration of the sign due to lack of distinctiveness. However, the Court also verified the acquisition of a distinctive character following use (so-called "secondary meaning") in four European Union States, including Italy.

The Court of Torino therefore concluded that the famous colored stripes of a K-Way constitute "a valid mark of fact, endowed with autonomous distinctive capacity even when used in combination with the K Way brand".

The Italian Court then ruled that the products they identified are "at least very similar (in the sense that they belong to the same line of casual / casual clothing) and sold at entirely comparable prices". This implies a risk of confusion between the brand of the actress Basic Net and the colored band that appears on the Armani garment. According to the Court, the likelihood of confusion arises from the use of the colored band, the overall visual impact it generates and its positioning on the sides of the hinges, and the fact that both products bearing the strip in question are marketed at the same stores and that their cost is almost similar. Such circumstances "can in fact concretely induce the consumer to believe that between the two companies there are ongoing non-existent co-branding operations". Finally, the Court of Turin ruled out the principle of the application of the c.d. “imperative of availability” opposed by the defendant

According to this principle third parties must always differentiate themselves through distinguishing additions or other arbitrary variations, sufficient to eliminate the risk of confusion with other products.

In this case, however, the additions made by Armani (aka the famous stylized eagles and the "AJ ARMANI JEANS" brand) are not considered sufficient to differentiate the product.

According to the Court of Torino the affixing of a notorious mark on the product does not exclude the counterfeiting of the figurative mark of another; if this were not the case "we would arrive at the paradoxical consequence of allowing the owners of the former to appropriately take possession of the latter, with the only precaution to use it in association with their distinctive mark, highly established on the market and highly distinctive and recognizable". For all the above, the Court concluded by declaring that the behavior established by Giorgio Armani "Constitutes an act of trademark infringement and as well as an act of unfair competition". The Court therefore issued against Armani an injunction order from the import, export, sale, marketing and advertising of class 25 products (in particular jackets) bearing the trademark object of the case or other mark containing the sign in question extended to the territory of the European Union and an order of destruction in Italy of counterfeit products.

THE PRICE OF CONSENT

Recently the Court of Torino has decided a case on the unauthorized publication of photographs on a website without the Author’s prior authorization and determining the quantification of damages on the basis of the principle of "price of consent".

The author of certain photographs, realizing that they appeared on a web platform, asked the court to be recognized as the owner of the rights of economic exploitation on them and, secondly the quantification of damages .

The Court of Torino ruled that the illegitimate publication on a website of other people's photographs by unauthorized third parties is a violation of an author’s exploitiation rights, but also that damages violation should be calculated by applying the principle of "Price of consent".

More precisely, according to this criterion, damages for the illegitimate exploitation of copyrights must be quantified on the basis of the sum that the rights holder would have received as consideration following the reaching of an agreement with the user. And the quantification of the "price of consent" must be based on the amount previously requested by the holder for the transfer of each individual photograph, to third parties.
 

THE PROTECTION OF BIOGRAPHICAL WORKS

Can we freely write, publish or tell the lives of famous people?

On this point the Court of Milan (IP Section) recently rendered a descision to settle a dispute between two authors (Antonio Prestigiacomo and Marcello Sorgi) on the life of the Sicilian Prince Raimondo Lanza di Trabia, the man who invented the soccer transfer market and who was Rita Hayworth's lover and a close friend of Onassis.

The Court ruled that in the case of biographical works of well-known personalities, the facts and events that affected them belong to the common patrimony and are not autonomously monopolizable by anyone. Copyright protection protects instead the formal choices, the stylistic and editorial techniques, created by an author.

The Court ruled that the text of plaintiff Antonio Prestigiacomo, "The Restless Prince. The life of Raimondo Lanza di Trabia "undoubtedly enjoys copyright protection both in terms of originality and novelty. As for the originality, Prestigiacomo’s Book is in fact configured as the personal result of the harmonization of real facts, also historical, and true facts, organized and stylistically reworked with a particular technique. The text is in fact the fruit of the alternation, in the narrative fabric, of interviews articulated in questions and answers, clearly identifiable by the presence of the quotation marks, made by the author to various characters who have had direct knowledge of the Prince.

However, the Court ruled that with respect to the identity of the main character and of many events narrated, there is a certain distance between the two stories, so to believe that they are autonomous creative works, belonging to different genres, each individually protected.

The work of Prestigiacomo cannnot in the end be considered plagiarized by that of Marcello Sorgi and that the biographical works of well-known personalities, but not with reference to the facts and the events that concerned them,are not monopolizable.

Embedding a Tweet could be Copyright Infringment

Rejecting years of settled precedent, a federal court in New York has ruled that you could infringe copyright simply by embedding a tweet in a web page. Even worse, the logic of the ruling applies to all in-line linking, not just embedding tweets. If adopted by other courts, this legally and technically misguided decision would threaten millions of ordinary Internet users with infringement liability.

This case began when Justin Goldman accused online publications, including Breitbart, Time, Yahoo, Vox Media, and the Boston Globe, of copyright infringement for publishing articles that linked to a photo of NFL star Tom Brady. Goldman took the photo, someone else tweeted it, and the news organizations embedded a link to the tweet in their coverage Goldman said those stories infringe his copyright.

Courts have long held that copyright liability rests with the entity that hosts the infringing content—not someone who simply links to it.

This is generally known as the “server test,” originally from a 2007 Ninth Circuit case called Perfect 10 v. Amazon, and provides a clear and easy-to-administer rule. It has been a foundation of the modern Internet.

We hope that the Ninth’s Circuit ruling does not stand. If it did, it would threaten the practice of in-line linking that benefits millions of Internet users every day.

The Shape of Water accused of Plagiarism.

As the Academy Awards night apporaches, controversy grows around the films selected by the Jury.

"The shape of water", the film by Guillermo del Toro, nominated for 13 Academy Awards, is accused of plagiarism: the film would be based on the 1969 play 'Let Me Hear You Whisper' of the Pulitzer Prize Paul Zindel . The legal action against the film's director, producer and movie house was presented by David Zindel, the son and heir of the famous playwright, who blames them for not having "shamelessly copied the story, the elements and the characters" of his father's comedy, even using the same words.

 The word is now up to the Court, called to determine whether Zindel's allegations are founded. However, it is not the first time in Hollywood that there have been battles on accusations of plagiarism, especially in the presence of films of expected success.

The classic Western by Sergio Leone For a handful of dollars is one of the peaks of its kind, thanks to the incredible performance of Clint Eastwood, a tramp gunner who, during his wanderings, ends up in the middle of a conflict between two families in a small village on the border with Mexico. Unfortunately, the film is also an unauthorized remake of a film by Akira Kurosawa entitled Yojimbo. Kurosawa sent Leone a letter saying "Nice movie, but it was my Movie", and sued him asking for a percentage of the proceeds. The two agreed for a reimbursement of 100 thousand dollars and 15% of profits worldwide.

Another striking case was that of Terminator. Harlan Ellison is one of the most litigious authors in the American science fiction world, and there are now dozens of lawsuits against people accused of stealing his ideas. However, the lawsuit he filed against James Cameron for The Terminator was slightly different. Ellison wrote an episode of Beyond the Limits called Demon With a Glass Hand, which told the story of a robot soldier who, disguised as a human, is sent back in time. Orion Pictures decided to pay compensation before the case arrived in court, and Ellison earned money and was credited to the film.

Last we hanve to mention the case of "Coming to America” a movie starrign Eddie Murphy.

In 1982, the well-known screenwriter Art Buchwald wrote a treatment for Paramount entitled King for a day, in which the protagonist was a rich and arrogant African ruler who traveled to America. The protagonist should have been Eddie Murphy. Paramount bought the treatment and spent a few years in a vain attempt to find someone who wrote the screenplay before leaving the project in 1985. The rights returned to Buchwald, which sold them to Warner Brothers. Later Paramount made a film with Eddie Murphy who played the part of a rich and ignorant African ruler traveling to the United States. The film was titled The Prince Looking Wife. Buchwald was neither paid nor credited, so he sued but Paramount agreed privately with him for an unknown figure.

The Shape of Audermar's Piguet "Royal Oak" is not a 3d Trademark.

The Court of Milan has recently expressed its opinion on the protection of the shape of the well-known "Royal Oak" watch created in 1972 by the Swiss company Audermars Piguet initially protected as a three-dimensional trademark.

Audemars Piguet recorded the shape of the relative lunette as an international figurative mark and complained on a trademark counterfeiting and unfair competition case for the sale of watches marketed by the Milan based start-up “D One”.

At first, the court issued an iaudita altera parte restraining order prohibiting the future commercialization of such watches however, the court overturned its initial decision and dismissed the appeal of Audemars Piguet on the grounds that "there are numerous elements of doubt about the validity of the operated trademark", as evidenced by the fact that its registration as a Community trade mark has been denied by the competent office (EUIPO).

In particular, according to the Court, the trademark seems to lack distinctive capacity, ie the ability to "distinguish products from those of another manufacturer and, therefore, perform the function of identifying the entrepreneurial origin of the product";

Again, according to the court of Milan, the three-dimensional distinctive sign does not even seem to have acquired distinctive capacity through use (so-called "secondary meaning"), "not having been documented uniform use" of the sign itself ".

Finally, the registration of the shape in question as a trademark does not even seem compatible with the provisions of art. 9 CPI, according to which "signs constituted exclusively ... from the form that gives substantial value to the product can not be registered as a trademark".

 In terms of unfair competition, the judge recalled that, to integrate the unfair competition law, the servile imitation of the product of others must "invest characteristics that are totally inexistent with respect to the function they are intended to perform", or those "arbitrary and whimsical" and "new with respect to the already known" characteristics that give originality to the product and have distinctive capacity, so that the public is led to bring them back to the company from which the product originates: only when these characteristics are concerned, servile imitation invests "elements capable of generating confusion in the public" and thus integrates unfair competition with confusion.

In this case, the judge did not recognize the existence of such an imitation, stating essentially - on the basis of what was found at the point of counterfeiting of the mark - that the imitated forms would be "structural and non-distinctive", as well as in some cases "Now acquired to the collective taste, having undergone a certain standardization", and that in any case there would be "significant differences" between the two products.

Surprise Decision on Steve Jobs Trademark.

The European Union Intellectual Property Office (EUIPO) has upheld its prior decision to grant the registration of trademark STEVE JOBS, in the name of two Neapolitan brothers, Vincenzo and Giacomo Barbato.

The trademark  was not only for STEVE JOBS, but also for a stylization, and a very particular letter J, that likely reminds consumers of another company’s logotype.

The Neapolitan brothers noticed that Apple had neglected to register its founder’s name as a trademark and, unwilling to let this opportunity go by,  registered the trademark as shown above before the EUIPO (Registration No. 011041861), in International Classes 9, 18, 25, 38 and 42.

After noticing this, Apple Inc. attacked this registration before the EUIPO, arguing that the letter J was a copy of Apple Inc.’s own apple device, with a very similar leaf, and a bite taken off it, as shown here:

After years of arguments, the EUIPO ruled in favor of the Barbato brothers, arguing that letter J is not edible, and consequently there is no relation between the bitten apple of the technological company and the “bitten” J of the Italian brothers.

Consequently, the registration was sustained, and there are now clothes being sold under the STEVE JOBS trademark. The trademark owners have also indicated that they would eventually be interested in selling electronic devices with this trademark and, with the Class 9 protection, this is very likely to happen.

Unfortunately, it is impossible to foresee how a company or market will develop and these situations cannot always be avoided, but it is important to note that comprehensive planning, and to proactively protect through trademark registration those terms important to a company.

Note: Trademark STEVE JOBS was also applied for before the USPTO (Serial No. 79141888), but rejected by said institution.

The New law on Live Music Entertainment.

The Italian Parliament has recently approved the new law on live entertainment, a long-awaited regulation by industry players which sets new rules and allocates more resources and tax benefits to the entertainment sector: the novelties provided by the new Law include increased resources of Fund for the Performing Arts (€ 9.5 million for the years 2018 and 2019 and € 22.5 million from 2020), € 4 million for performances to be organized in the areas of Central Italy hit by the 2016 and 2017 earthquakes, the extension of the Art Bonus to all sectors of the show business, the stabilization of tax credit music, the grant for producers and live music performers of funds uo to € 4.5 million starting from 2018, the extension of State support for live performance of popular music and street performances.

The German Battle for the Balck Friday Trademark.

In 2013, a trade mark application for Black Friday was filed in Germany. Today, the German trade mark is registered for Super Union Holdings Ltd., Hong Kong which has licensed the trade mark “Black Friday” to Black Friday GmbH, a company based in Vienna.

Since 2016, Super Union Holdings Ltd. has started to attack companies using the term Black Friday by sending warnings, such as the US e-commerce marketplace Groupon in 2016, as media reported. Another party concerned is a German entrepreneur who hosts the domain black-friday.de, a platform offering Black Friday deals.

In 2017, Super Union Holdings Ltd. sued Amazon for its use of the sign „Black Friday“ in Germany by raising, inter alia, forbearance and damage claims („Black Friday“ wird Fall für die Gerichte, Frankfurter Allgemeine Zeitung, November 6, 2017).

Of course, some companies, affected by the attacks of Super Union Holdings Ltd., have started to fire back. It is no surprise that there are more than twelve pending cancellation actions against the German trademark Black Friday. In addition, just recently a court in Düsseldorf / Germany has issued a preliminary injunction against Super Union Holdings Ltd. and its licensee Black Friday GmbH to refrain, inter alia, from claiming against clients of the operator of the aforementioned website black-friday.de, that the use of “Black Friday” in an ad is a trade mark infringement.

In Germany, the registration of a trade mark can be cancelled on request of any third party if it has been registered despite absolute grounds for refusal, e.g. if the mark is descriptive or does constitute an indication which needs to be kept freely available. So, what is your opinion?

THE POINT ON THE ITALIAN LINK TAX.

The last few days have been extremely turbulent for web companies with the government always looking for new measures to tax the network.

The proposal to reform the Copyright Directive, one of the most discussed European Commission regulations, does not appear to be in consensus during the discussions in the European Parliament. In particular the new Directive tries to introduce rules (art. 11) in favor of the publishers (the so called "Google Tax") and the requirement (art. 13) for intermediaries to set up filters for content that users enter in order to delete those that are in violation of copyright. The mechanism attempts to monetize one of the genetic activity of the web, hypertext but the fear is that it can occur  what as already happened in Spain and Germany, where publishers have the right to get paid by Google News. The result was a traffic collapse of publishers' sites. Recently, however, the apparent negative consequences of adopting the link tax in Spain appear to have not dissuaded the Italian government from taking such an initiative. Apparently the government is studying a rule that oblige news aggregators like Google News to reach a commercial deal with publishers. In the event of this agreement failing, a mediation process may arise before the AgCom or the dedicated section of the Council Presidency before leading to a judicial proceeding.

EVEN A WINE GUIDE IS A PROTECTED CREATIVE WORK.

In a recent decision, the Court of Rome ruled on an unfair competition case between two wines guides "Bibenda" (published by Bibenda Editore) and "Vitae" owned by AIS (the Italian Sommelier Association). The Court found relevant similitudes both relating to the physical format of the Guide and the descriptions of companies and wine production data, and "strong elements of consistency in the sequence of arguments".

Immediately after the interruption of a collaboration between the two parties, AIS  began to distribute a new Wine Guide to its members, called "Vitae", but it appeared to the authors of "Bibenda" too similar, under a multiplicity of points of view, to the one created by them according to well-defined editorial criteria. Criteria which, according to the judgment, are sufficiently similar to those adopted by Ais for "Vitae". For this reason the Court upheld Bibenda Editore's requests and stopped the publication of future editions of "Vitae". Ais was also sentenced to pay damages (still to be quantified) in favor of Bibenda Editore.

According to the judgment of the Court "an analysis of the guide published by the defendant (AIS) shows significant similarities with the Bibenda’s Guide in relation to the volume size, the material used for the cover, the binding and the fonts used and the format.

Significant similarities can be found in company descriptive descriptions, in both guides, with the same sequence and within an identical structural context and according to a common graphical presentation, data relating to company name, address, internet site, mail address, year of foundation, property, bottles produced, vineyards, direct sales, company visits, introductory part, name wine, typology, grapes, alcohol content, price, bottles produced, tasting, winemaking and matching.

It is also common to evaluate products with symbols placed on the right side of the pages.

As already noted, the two guides have strong similar elements in the sequence of arguments (...) ". On the basis of these arguments, the Court of First Instance upheld Bibenda’s claim and prevented the Italian Sommelier Association from publishing Vitae's guidebook unless significant adjustments would be made to substantially differentiate it from Bibenda's guide.

The Point on the Barnier Directive.

More and more discussions arise around the receipt of the Barnier Directive (EU 2014/26) harmonizing copyright management at a European level so as to ensure more efficient and transparent ownership by copyright collecting societies, by introducing a greater level of liberalization. As many may know, copyright collection in the EU is still governed locally
Article 5 of the Barnier Directive provides that “right holders have the right to authorize a collective management body of their choice to manage rights, categories of rights or types of works and other protected materials of their choice, for the territories of their choice, irrespective of the Member State of nationality, residence and establishment of the collective management body or the rightholder”.
The Barnier Directive addresses three major issues.
First, the collective management of copyright and the remuneration of each artist for the reproduction of his works. The Directive has a major significant impact on music and in Italy where copyright is still collected by Siae, the Italian Collecting Society of Authors and publishers under a monopoly regime.
The second area of intervention of the Directive is the management of neighbouring rights. Unlike what is still happening with Siae, the market of neighbouring rights has been already liberalized and today the former IMAIE monopoly (Mutualist Institute Performing Performers) is competing with eight other collecting companies
The third and final aspect of the Directive is the grant of multilateral licenses for rights to music reproduced online: for example, on youtube or spotify.
In June 2016, AGCOM also wrote to Parliament and the Government, pointing out that "the value and the ratio of the European regulatory system are severely compromised by the presence, within the national system, of an isolated provision in the landscape of the Member States, which attributes to a single subject (Siae) the reserve for the brokerage of copyright. "
Something, however, seems to be changing: recently, the Minister of Culture Franceschini stated that “the government has been prepared to propose to the Parliament a standard that allows other collective management bodies to operate in Italy”. In fact, this statement seems partial and, according to many, only avoids further infringement proceedings for our country, as it does not provide for a genuine liberalization but a small opening of the market to only other non-profit-making collective management bodies, or equivalent foreign companies. 
Italy has implemented the Barnier Directive only in March 2017, thus reserving SIAE the right to an exclusivity provided by article 180 of the copyright law of 1941.
This would mean in principle that private independent management companies such as Soundreef which now operate through a UK subsidiary to evade the Italian monopoly, would be excluded. Siae already has representation agreements with European counterparts, by virtue of which each collecting company manages copyright in its own country on behalf of others. The debate therefore seems to continue.
 

Wild Selfie

A US court has recently put an end to the legal battle over Naruto’s selfie, the Indonesian macaque which became famous for his selfie. The Court's ruling was in favour of Mr. Slater, the owner of the camera, and rejected the claims of PETA, a US non-profit organization, which supported for the monkey’s rights.

The bizarre case in 2011, when David Slater, a professional photographer, was travelling in the Indonesian wild forest to capture with his camera some of the most spectacular animal species. Slater bumped into a group of monkeys and left his camera unattended for a few moments when a photogenic macaque, Naruto, grabbed his camera and began to shoot hundreds of selfies. Some of these, as well as those of the best instagrammer, were moved and blurred, others, instead, were almost perfect. The photographer published one of the photos on his blog and immediately the image became viral. Based on a literal interpretation of American copyright law, Wikimedia, the American-owner company of the Wikipedia domain, decided to include the image in its collection of Wikimedia Commons content, a collection of over 20,000 public images and videos that can be used by the community as they are unaffected by copyrights. According to American law, the rights upon a photo are owned by its author, which is the person who took the photo and, in this case, it was a monkey. Salter opposed the free disclosure of the image he considered to be his own and he gave rise to a legal dispute over intellectual property: if a monkey takes a photo, whose is it?

Over the years, the issue has become increasingly complicated and increasingly absurd: PETA, already known for its provocative battles, filed a lawsuit in the name of Naruto, Slater and also Blurb, a publishing house that published the Wildlife Personalities book, containing many animal pictures, including Naruto’s one.
Both Slater and Blurb presented a "motion for dismissal": a document used in the US legal system in order to explaining that the case against someone is wrong and based on non-existent reason. In this document, Slater wrote, among other things, that "the only relevant fact in this case is that the plaintiff is a monkey that sue for copyright infringement." According to Salter, PETA can not prove that the famous selfie was shot by Naruto and not by another monkey.
And in fact, the judges agreed with him, ruling that he has, and the monkeys cannot own any copyright over a selfie.
Despite this, PETA and David Slater have reach an agreement: the photographer will pay 25% of the revenue generated by his copyright to the non-profit organization.
 

The 1935 Agreement between Ferrari and Tazio Nuvolari.

A 1935 agreement between Tazio Nuvolari and Alfa Romeo - through the Scuderia Ferrari - was recently found.

The most striking thing concerning the agreement is the extreme concision of the agreement, perhaps one of the most important sports law agreements of the 30's is a one page letter through which Nuvolari makes his services available to Scuderia Ferrari (which the time it ran and prepared Alfa Romeo cars).
   
It is estimated that Nuvolari could gain between salary, bonuses and prizes, almost half a million lire a year. A very high figure for the era, far more than mathematics makes sense since a middle class worker usually earned one thousand lire per month. 

Another curiosity is the value of injury and life insurance, equal to almost 10% of the value of the wound.

The other interesting thing remains the breakdown of prizes. At a time when media rights did not exist, one of the main sources of revenue for a racing équipe were prizes awarded by the organizers. The deal reveals a fairly favorable breakdown for Nuvolari: over half of the prizes went to the driver.

The Peril of Using your name as a Trademark.

About a year after Thaddeus O’Neil launched a menswear line inspired by the surf culture he grew around on Eastern Long Island, the independent designer received a cease-and-desist letter from a law firm representing Sisco Textiles owner of the famous “O’Neill” sports apparel trademark.

This was the beginning of legal dispute between the surfwear brand founded in 1952, O’Neill, and the independent New York designer who is gaining more and more popularity after winning several fashion contests.

In their dispute with the New York fashion designer, O’Neill argues that the brand has been using its name since the 1950s, and that Thaddeus O’Neil’s marks are “confusingly similar”. According to O’Neill this could of course lead consumers to be deceived and think that the companies are related.

Trademark disputes involving patronymics (i.e. the trademark equivalent to the founder’s name) are quite common in fashion. In 2012, Tod’s — which was operating the Roger Vivier label under a license at the time — took Los Angeles handbag designer Clare Vivier to court for trademark infringement. She eventually settled and re-branded as Clare V. In 2016, Elio Fiorucci lost his case in Italy against the new owners of the brand he founded in the trademark case that involved the use of the “Love Therapy by Elio Fiorucci” trademark.

But what is the position of Italian Courts when use of patronymics could be confusing with other trademarks? In the end of the 80’s the Supreme Court stated that the use of a patronymic as a trademark is a legitimate use of a sign conflicting with a previous registered trademark so long that the previous trademark does not become a famous mark.

This principle has been reaffirmed by the Supreme Court in 2016 in the cited Fiorucci vs. Elio Fiorucci case.

Our tip? Carry out a preliminary trademark search before launching your brand bearing your name.

The EUCJ's Ruling on Pirate Bay.

With the recent judgment C-527/15, the European Court of Justice has stated the copyright infringement by "The Pirate Bay", a file sharing web portal. The ECJ affirms that Copyright is violated even if files are uploaded by third-parties, (i.e. the users), as "Pirate Bay’s administrators can not ignore the fact that their platform gives access to published works without the permission of the rights holders."

The arguments used by the Court to censure Pirate Bay seems quite innovatie with respect to the philosophy that has been the base of these operators’ business so far.

Firstly, the Court of Justice ruled that sharing platform managers establish, through their activities, a form of public communication which, under Article 3 of Directive 2001/29 / EC, requires the right holder’s consent for the use of the work in question. In fact, administrators, by publishing content uploaded by users, play an "crucial role" in making them available, such as indexing and managing the various files, categorizing works and deleting old and obsolete files. Lastly, in its observations the EU Court has pointed out that sharing website are liable also because of the considerable advertising revenue generated by the publication of these files.

It is clear that this ruling regards the whole online sharing platform system and increases the responsibility for illegal content uploaded by users.

According to some experts, however, the ruling will have an impact not so much in the world of piracy but rather in the legal sharing video website and on the social network. In fact, having held that works’ provision on a sharing platform constitutes a public communication has more effect on free sharing platforms, such as Youtube, which are part of the so-called User Generated Content (UGC) and that use the streaming rather than actual piracy. Therefore the risk is that UGC sites are too easily assimilated to the category of outdated download torrent website like, indeed, Pirate Bay.

The fact that manager is responsible for actively managing and filtering certain content, seems to prefigure a direct and general responsibility for third parties uploads.

The European debate will be heavily influenced by this decision, because in these days the European Parliament is working on a reformation of copyrights and the relative online platforms’ responsibility.

Indirect and Subliminal Advertisements on Social Media.

The advertising market is undergoing a major change and indirect - subliminal advertisements promoted through online and social networks are becoming more and more common.

Indirect advertising is a clear and explicit message that appears on unusual spaces, but not mentioned as such. Subliminal advertising, instead, isn’t evident. This practice is banned by Italian law but only with respect to TV advertising and although film and television are a fertile ground for this kind of promotion, new challenges have emerged above all on social networks. Indeed, as the world wide web represents a new opportunity to express our thoughts and interests and tastes and a new way of learning and sharing information and content, companies have also begun to use them in an explicit or tacit manner.
On the one hand, we have real advertising spots and sponsorships, although not fully controlled: Facebook and Instagram, for example, check that ads don’t have an illegal content or prohibited by rules but they don’t control the accuracy of the information communicated, nor their congruity with the regulation, since there is no discipline code to be respected.

On the other hand we notice serious “product placement” proliferation within the most clicked profiles.

In this regard, the British Competition and Markets Authority stood up against disguised advertising, which is not recognizable in photos and videos posted on social media. Recently also the American Federal Trade Commission, for the first time addressed the issue, asking “web influencers” to emphasize that hidden  recognizable through hashtags or comments.

However, there are no specific rules governing indirect and subliminal and the terms of use of social media like Instagram, provide and restriction. The question arises as to whether consumers, who shall not be subject to untruthful and deceptive ads, have also the right to distinguish the advertising contents from a “lifestyle tips”.

Recently, the Italian National Consumer Union has questioned the Competition and Market Authority (AGCM) to ask for the legitimacy of indirect and subliminal advertising on social networks. The legal basis for this controversy is the article 22 of the Consumer Code which asserts that the commercial intent must be explicitly stated if it is not obvious from the context or if it is capable of misleading the consumer.

The AGCM should soon clarify the issue and provide adequate information both on the relationships between producer and influencer, and on the obligation to declare the advertising purpose of the posts.

Meanwhile, Instagram has launched a new tag, "Paid Partnership with", so that users can include it in their stories and post. Alternatively, many bloggers, including the most famous Chiara Ferragni, have started using some "claim-hashtags" such as #ad, #advertisement, or #advertising to highlight the commercial purpose of their photo, protecting the consumer.
 

Emoticons and Precontract Liability.

Emoticons or emoji, also known as smileys, are stylized reproductions of facial expressions. The word "emoticon" is a new made-up expression of the English terms "emotion" and "icon", and it is used to designate a small image reproducing our most common feelings. By now, however, emoticons, originally made of typical smile, laughs, tears, and scowl, has expanded and includes symbols and images of various kinds. These images, mainly used on the internet and in text messages to add extra-verbal components to written communications, have become so common that they are considered a new digital language.

Recently in Israel a curious fact occurred: a landlord successfully sued a couple of guy who misled him by writing an emoji message. More precisely, the landlord, Yaniv Dahan, published an ad for renting his house on an real estate webpage and a couple responded, according to the court, making a statement of intent to the conclusion of a contract. Indeed, after the young couple responded to the ad, the landlord deleted his ad but the couple stopped responding to him showing no more interest in renting the apartment. 

The matter whether there was a sort of pre-contract liability was then brought in front of the judges who considered, among the evidence used against the defendants, the text written in response to the ad, containing  images depicting various expressions and objects, from the "v" gesture of the fingers to a bottle of champagne.

The judge ruled in favour of Mr. Dahan, ordering the couple to pay about $ 2,000 as compensation for pre-contract liability. In particular, the court motivated its decision by explaining how the emoji used by the couple, including the bottle and the ballerina, indicated optimism and positivity, and hence the intention to enter into a contract. Although this message was not a binding contract between the parties, according to the court the message they wrote was enough to create a legitimate expectations that a further agreement would be concluded.

Certainly, and this is a very common experience, emoticons are intuitive and perceptive symbols, as they express a feeling or reference that would be difficult to translate in words, and that, above all, it would take longer time to be written extensively with the letters.

However, there is the question of whether the cute gifs as well as simplify and clear ambiguities by clarifying a concept have not replaced a good part of feelings, or rather the will to express them, making virtual communication lighter and more unconscious and therefore less representative of the actual individual’s will.

So far, this ruling is an isolated case, but we definitely have to reflect on this issue and, in the meantime, also to be careful to what we write ;-).
 

Blue Ivy

A curious legal battle is recently going on between two international music stars and an Californian company for filing of the trademark "Blue Ivy", which happens to be also the name of the Beyonce’s and Jay-z’s five-year-old daughter. The two singers had already tried, at the time of the baby's birth, to register her name as a trademark, but the LA based clothing company had entered an opposition, asserting its rights to the same name, which had been operating for three years before the child was even born. Today, Beyoncé and Jay-z have filed a new request for registration, adding to brand also the rapper's last name, Carter. This time, the brand, available for viewing on the US Patent and Trademark Office database, covers a wealth of product categories from the beauty market to childcare products, as well as DVDs, CDs, handbags, books and even gambling cards or " live music performances ". The registration request was originally filed in January 2016, but was only available for opposition on January 10 this year. In fact, the California based company has again moved to block this second application, claiming that the two famous parents would like to proceed with trademark registration only to prevent someone else from using the name of their child, without being able to provide the actual proof of use on the market. Indeed, contrary to what is provided in the Italian legal system, according to the United States trademark law, an essential requirement for registration of a trademark is the presentation, at the time of application, of a so-called "statement of use", demonstrating the use of the mark on the US market. If the applicant company is new on the US market, the trademark application is temporarily accepted. Within six months, the registration may be confirmed following the commercial “use test” in the United States. The test of use is made possible by the proof of the product’s sale, or with the printing of catalogs, with advertisements, etc. In Italy, however, the use of the trademark is not an essential requirement for its registration, but a condition for maintaining its validity. The legislator, in Article 24 of the IP Code, explicitly regulated the case of the trademark revocation for "non-use" if the holder of a trademark registered in a specific class didn’t use it for 5 years. In both cases, the ratio of this rule is to prevent anyone from make use of a distinctive sign without actually using it, withdrawing it from the market and preventing others from using it.