The French Supervisory Authority (CNIL) wrapped up 2020 with a EUR 20,000 fine against NESTOR, a French food preparation and delivery company catering to office employees (see full Decision SAN-2020-018 in French).

The CNIL highlighted various breaches of the General Data Protection Regulation (GDPR) and the ePrivacy Directive regarding the processing of prospects and clients’ personal data by the CNIL, most notably:

While the fine is rather limited in view of the maximum potential amount of EUR 20 million or four percent of the turnover (whichever the greater), this decision presents an opportunity to examine web scraping and direct marketing practices, which are rapidly developing.

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On 4 July 2019, the French Data Protection (CNIL) published its Guidelines on Cookies and Other Tracking Technologies (the Guidelines, available in French here). The Guidelines further detailed the nature of the interplay between the General Data Protection Regulation (GDPR) which reinforced expectations towards obtaining consent to data processing operations when such consent is required), and the ePrivacy Directive which more specifically addresses the privacy requirements on cookies and other tracking technologies. Indeed, while the ePrivacy Directive was expected to be updated through an ePrivacy Regulation (latest draft proposal available here), on or before GDPR entered into force, it remains under discussion at the European level to this day, and subject to intense lobbying by all stakeholders.

Further to the publication of the Guidelines, several French professional associations in the online marketing, distance selling and online media activities initiated legal action against the CNIL, before the French Administrative Supreme Court (the Conseil d’État), on the grounds that the CNIL acted above and beyond its authority in adopting the Guidelines, notably by (i) generally prohibiting “cookie walls”, (ii) recognizing a right of data subjects to refuse cookies, (iii) requiring the identification of the data controller for the cookies, (iv) mandating an exhaustive and up-to-date information of the data subjects on the cookies, regardless of their involvement in data processing operations, (v) requiring that the users’ agreement must be expressed by a separate action for each of the distinct purposes brought to their knowledge with a view to the storage of information or access to information already stored in their terminal equipment, and (vi) imposing maximum data retention periods for cookies.

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Practice head(s):Claude-Etienne Armingaud

Testimonials

‘The team is well versed and up to date on the current standards and practices. Team members are all very flexible in their availability and very responsive’.           

‘The team provides sharp advices and has great sector industry knowledge’.

‘The team has in-depth expertise and great ability to anticipate future legislation’

‘Claude Etienne Armingaud is more than a lawyer; he is a trusted partner who knows his own limits and is very friendly’.

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K&L Gates ranked “Recommended” with Claude-Etienne Armingaud.

Source: Leaders League

K&L Gates ranked “Recommended – Band 2” with Claude-Etienne Armingaud.

Source: Leaders League

The new generic top-level domain (gTLD) .africa, a regional domain for users located in and out of the continent, has been officially validated by ICANN.

More than a decade after its other regional counterparts, such as .eu or .asia, the .africa gTLD has been the subject matter of a legal conundrum for years.
The new generic top-level domain (gTLD) .africa, a regional domain for users located in and out of the continent, has been officially validated by ICANN.

More than a decade after its other regional counterparts, such as .eu or .asia, the .africa gTLD has been the subject matter of a legal conundrum for years.
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The French Act No. 2016-1321 of 7 Oct. 2016 for a Digital Republic (the “Digital Republic Act”) amends the existing framework for online intermediation platform created under Article L.111-5-1 of the French Consumer code by the Act No. 2015-990 of 6 August 2015.

The Digital Republic Act creates a general, autonomous and impersonal status of online platform operator (“OPO”) and completes the existing legal framework relating to consumer protection through the consumers’ prior information.
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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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K&L Gates is ranked in the Industry focus: IT, telecoms and the internet ranking as Band 3

Headed by Etienne Drouard, K&L Gates LLP’s six-lawyer team assists major companies with digital transformation, outsourcing matters and IT systems integration. It also advises on cutting-edge data protection matters. Altarea-Cogedim Group and Voyages-SNCF.com are clients, as are a number of luxury goods manufacturers and advertising groups. Senior associate Claude-Etienne Armingaud is another name to note.”

Source: Legal 500 EMEA

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.