Despite the lack of announcement by UK Government to give notification to the EU under Article 50 of the Lisbon Treaty of its decision to withdraw from the Union, France is already making its move to move into the steps of the former Fintech capital of Europe. On January 25-26, 2017, more than 1,500 people attended the second edition of the Paris FinTech Forum, encompassing more than 28 countries and 130 companies, from global players to startups.

The irony of the event location, set in the historical venue of the former Paris Stock Exchange building, was not lost to the Bank of France Governor Francois Villeroy de Galhau who wondered “Who would have imagined just a few years ago that a central banker would be speaking at a forum on innovation?” before recognizing that “For banks and insurers, the digital revolution is upsetting the traditional model for client relations” and “there are difficult choices ahead.

In addition to Fintech – both in their classic understanding of technological innovation applied to the finance industry to more disruptive models, the Forum also gave the opportunity to demonstrate the blossoming RegTech scene. RegTech encompasses all added-value solutions which make it easier for banking services to ensure compliance with applicable regulation, be it for the KYC or AML purposes. Blockchain based solutions also departed from their original Bitcoin association to showcase a broad range of innovative services, from identity control to supply-chain management.

While investments, both in terms of number of operations and invested amounts, have been slightly decreasing in 2016, the Paris Fintech Forum was a proud statement that the market was maturing into products ready to hit the market on a large-scale basis.

The Paris Fintech Forum showcased the strong interest of the French current Government in blockchain technology (see NewsBTC article here), in the wake of the uncertainty surrounding the consequences of the Brexit announcement (see Business Mirror article here). However, France itself will be facing a general election next April and uncertainty may also prevail until then on the continent.

First publication: K&L Gates Fintech Law Watch

On November 10, 2016, the French Government issued a decree against the financing of terrorism which contains various measures addressing anonymous electronic money [source in French]. This new regulatory measure applies to electronic money issuers as well as their distributors, credit institutions, finance companies, consumers, and to any person who physically transfers money from a certain amount.
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On 3 October 2016, during a conference organized by the French Comity of Car Manufacturers (“CCFA”) during the Paris Motor Show, Mrs. Sophie Nerbonne, the Compliance Director of the French Data Protection Authority (“Commission Nationale de l’Informatique et des Libertés” or “CNIL”), hosted a press conference in the ongoing fact-gathering for the CNIL’s “compliance package on connected vehicles” (link – in French) on the basis of the Act no. 78-17 dated 6 January 1978, relating to information technology, data files and civil liberties.

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On March 24, the French National Assembly hosted a day-long conference on “Blockchain: Disruption and Opportunities.

This event aimed at raising awareness of the French elected representatives and corporate executives on blockchain issues and potential uses for the digital transformation of society as a whole.

The closing statement provided by Emmanuel Macron, the French Minister of Economy, Industry and Digital Economy, was subsequently echoed by his announcement on March 29 of the upcoming adaptation of the French finance regulatory framework in order to progressively allow the introduction of the technology.

This adaptation should first open up to experimentation on the mini-bond market, to be expanded to other tools.

Mr. Macron stated that he was “aware of the importance of the disruptive potential of the blockchain” while the regulatory framework was limited by the current French and European regulations, which prevented the use of the blockchain “in real-life situations, i.e. with real clients and not exclusively in closed beta test scenario within a given financial institution.

It was also announced that a ministerial ordinance had just been submitted for review to the French Administrative Supreme Court (“Conseil d’État”) to allow for such experimentation in the coming weeks.

First published on K&L Gates FinTech Law Blog.

The French law no.2014-344 on consumer protection, named “Hamon Act” (for the name of the Ministry in charge of this reform) and dated March 17, 2014, creates a new industrial property right: the “Geographical Indications protecting Industrial Products and Crafts” (or “Indications Géographiques protégeant les Produits Industriels et Artisanaux”, herein, “IGPIA”). Until now, the protection of geographical indications was reserved, both at French and European level, to agrofood products, leaving aside the industrial and handicrafts products, whose quality is related to a specific know-how linked to their geographical origin. The IGPIAs cover well-known products, such as Quimper pottery, Limoges porcelain, Basque linen or Calais lace. Nine new provisions have been added to the French Intellectual Property Code (IPC), in order to clarify the implementation mechanisms for the management and the protection of IGPIAs.

La loi n°2014-344 relative à la consommation, dite « Loi Hamon » du 17 mars 2014, vient de créer un nouveau de droit de propriété industrielle : les « Indications Géographiques protégeant les Produits Industriels et Artisanaux » (IGPIA). Jusqu’ici la protection des indications géographiques n’était réservée, tant au niveau français qu’européen, qu’aux produits agroalimentaires, laissant de côté la qualité des produits industriels et artisanaux, issue d’un savoir-faire lié à leur origine géographique. Les IGPIA visent des produits reconnus tels que la faïence de Quimper, la porcelaine de Limoges, le linge basque ou encore la dentelle de Calais. Ce sont ainsi neuf dispositions qui ont été ajoutées au Code de la Propriété Intellectuelle (CPI), afin de préciser les mécanismes de mise en œuvre de la gestion et de la protection des IGPIA.

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The earlier is the owner of the French and Community semi-figurative trademark “vente-privee.com”, underlined with a pink line drawn in diagonal, enriched by two pink butterflies.

The latter is the owner of the French trademark “showroomprive.com” and expected the registration of a community semi-figurative trademark “showroomprive.com” enhanced with some stylized and coloured elements.

However, on August 1, 2012, the Office for the Harmonisation of the Internal Market (herein, “OHIM“) refused such application for “SHOWROOMPRIVE.COM” on the ground that the trademark was not distinctive enough and, much to the contrary, was descriptive for the targeted goods and services.

At the same time, on September 5, 2012, Showroomprive.com assigned before the Paris first instance Court, its competitor, Vente-privee.com, in order to invalidate the “vente-privee.com” trademark for lack of distinctiveness. This trademark had been registered since October 14, 2004 without any complains from ShowroomPrive.com or any other third party.

The first instance Court welcomed Showroomprive.com’s request and decided that “the terms ‘venteprivee.com’ was, at the time of the application date, descriptive of the company’s business activity for every consumer wishing to buy online discounted products; and thus such use was necessary to designate its private sales activity.” In addition, the Paris Court highlighted that the trademark had not acquired any “distinctiveness through its use, thus enabling the term to take ownership of generic names, when such names must remain available for all the economic actors from a given sector.

Meanwhile, on December 6t, 2013, in another law suit, Vente-privee.com assigned the owner of similar domain names (namely vente-priveee.com, ventprivee.com, venteprives.com) on the basis of its cybersquatting activities. The French first instance Court highlighted that the semi-figurative “vente-privée.com” trademark had to be considered as a well-known trademark. Indeed, in this case, the Court decided that the “vente-privée.com” trademark had a strong reputation due to the fact that a significant part of the relevant public made a connection between the trademark and its associated goods and services.

In conclusion, the decision concerning the semi-figurative trademark should not affect the word trademark “SHOWROOMPRIVE.COM” registered in 2007 by the OHIM. Nevertheless, we can legally wonder about the consequences in case of further contestation regarding a word mark and a close watch should be kept on any follow up evolution.

First published in K&L Gates Trade marks and unfair competition Bulletin no. 1/2014 (PDF) in collaboration with Alexandra Bernard.

Big data.” For nearly a year, marketers and CRM specialists have been more than fond of this new expression to the point of devoting several special editions of their publications to the topic.

If this neologism tends to scare the general public by its phonetic and philosophical proximity with its Orwellian bigger brother, the concept only pursues the developments initiated in the 90s through “data mining.” At that time, groups of data seemingly lacking causal or correlative relationships were subjected to mathematical analysis in the hope of discovering links between aggregated individual behaviors.

While some findings were limited to stating the obvious (such as the increased sales of appetizer upon promoting aperitif drinks), these new mathematical models allowed marketing teams to quantify the actual impact of promotions within the realm of distribution.

Other findings, however, were able to uncover less obvious ties, such as a correlation between the purchase of beer and of diapers for children by male shoppers.

These new steps in consumerism were however limited by the then-existing technology: the power of computers at the time, the introduction of data into the system and the processing time made the analysis relevant solely as a background strategy and for the emergence of certain statistical behavioral typologies, but does not allow any analytical granularity, or a real-time view. In addition, costs associated with material and human resources necessary for such analyzes prevented its access to a large crowd of users.

Nearly twenty years later, while technology has evolved in accordance with Moore’s Law, the consecration of Big Data has mainly be possible thanks to a double behavioral factors from the subjects / objects of the data analysis. Indeed, the raw material of big data remains the individuals. But those individuals have not only moved their habits to a digital world, facilitating the capture of data, but also opened up to the sharing their data in this paperless world.

It would seem that this created a data paradox: people have never advertised so freely their private life and personal data and, at the same time, the proposed revision of the EU regulatory framework for the processing personal data has seen a rarely-encountered level of lobbying. And so, today, a consumer association puts the main players of the social networking sphere on the grill, demanding that they explain their abstract contractual relationships with their users. And at the same time, the same users do not seem ready to give up the online sharing of their individual moments.

In our opinion, this view is not as paradoxical as it seems. It is instead the result of the confidence that these same users in how their lives are used for other purposes than just sharing with a selected group of recipients. After all, if the service is free, the money must be found elsewhere. The aphorism goes on to state that the user should then be the product, but it could also be that the user is consciously aware of its own value in this exchange.

When the exchange appears as too unbalanced, the consumer will not hesitate to revise to the economy of this contract and leave the relationship, bringing along his value.

Trust is therefore the core engine of data analysis.

This statement may seem conclusive. However, looking at the legal and regulatory obligations bearing on those in charge of data processing, it seems clear that such obligations mainly includes good conduct and transparency undertakings, with both individuals and the regulator. For instance, the core requirements set forth by the French Data Protection Authority (CNIL, Commission Nationale de l’Informatique et des Libertés) reside primarily in disclosure requirements for individuals and reporting to a publicly accessible register maintained by the regulator.

And this is probably where the issue lies with regards to Big Data. The data sets have reached extravagant sizes and the service providers and experts are bragging loudly about their ability to assist in the navigation on these oceans of bits. If their capacity to create real value in these dizzying well, it should not be forgotten that their expertise comes from data-hungry mathematical and algorithmic models. The temptation remains to feed these models in order to increase the service providers’ relevance from the data collected on behalf of their client.

When the flow of data becomes less transparent, without the knowledge of individuals or of such service providers’ customers, the implosion of the whole system is to be expected soon.

Without questioning the actual benefits of Big Data for all CRM actors, including the customers themselves (more than happy to receive offers truly relevant to their personal interests), the chain of trust must be maintained all along in order not to break the fragile ecosystem. The best policy must reside in a rational and coordinated approach by the classical actors of a new issue, and ensure that the multiplication of “Chief Data Officers” in multiple actors do not come at the expense of “Chief Privacy Officers”, acting as a legal safeguard against marketing sirens.

Indeed, a point of no return could be reached when Big Data, surpassing Big Brother, will not even need to analyze the present behavior to predict the future. And that point of no return has been reached last year by Target.

Of the difficulty to frame photograph as a protected work and its consequences on social network.

On December 18, 2012, further to its acquisition by Facebook, Instagram unveiled its new terms of use, to be enforced on January 16, 2013. At the case of the redrafting of the contract tying the social network to it, users stood much-discussed undertaking which allowed the company to monetize its users’ photographs, notably for commercial and advertising purposes. Facing a major uproar from internet users Instagram elected to withdraw this provision and apologized fondly. However, such withdrawal only targeted the cancellation of clear terms of what the terms of use provided from the very beginning: the grant by the users to Instagram of the right to use the photographs uploaded on its platform.

Two days later, the courts of Paris rendered a judgment (TGI Paris, 3ème chambre, 4ème section, Jugement du 20 décembre 2012 – Philippe G, Alexandra J c./ Paul M. (in French)) which may jeopardize the grievances of the social network users. Indeed, the judges refused to recognize that the airplane photographs take by individuals bore sufficient originality to allow any protection under French intellectual property law.

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