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(more…)K&L GATES ADVISES ENVISION DIGITAL ON ACQUISITION OF QOS ENERGY
September 2nd, 2022 | Posted by in Communication | Deal - (0 Comments)Global law firm K&L Gates has advised Envision Digital, one of the world’s largest managers of renewable energy, on its acquisition of the Nantes-based software publisher QOS Energy.
Envision Digital, which operates the EnOSTM net zero platform, manages more than 400 GW of renewable energy globally. The Singapore-headquartered company has more than 1,000 employees and 12 international offices, spanning the United Kingdom, France, Germany, the Netherlands, Norway, Malaysia, China, Japan, and the United States.
Founded in Nantes in 2010, QOS Energy is a leading provider of energy management software. It has developed a web-based platform called “Qantum,” dedicated to monitoring and managing the performance of solar and wind energy production and storage facilities.
The Paris-based deal team advising Envision Digital was led by Raphaël Bloch (partner) with the assistance of Samuel Boccara (senior associate). Employment law advice was provided by Christine Artus (partner) and Natacha Meyer (associate), while Claude-Etienne Armingaud (partner) and Camille Scarparo (associate) advised on intellectual property and IT matters. Additional support was provided by Brussels-based partners Melanie Bruneau and Philip Torbøl and counsels Miguel Angel Caramello Alvarez and Antoine de Rohan Chabot, who advised on foreign investment-related issues, and Singapore-based client relationship lawyers Lai Foong Chan and Lucas Nicolet-Serra.
The New Digital Frontiers: How IP is adapting to virtual worlds, from NFTs to virtual products
August 24th, 2022 | Posted by in Blockchain | Intellectual Property | Trademarks - (0 Comments)Virtual products, the metaverse, and non-fungible tokens (NFTs) have recently been expanding and receiving considerable attention from investors, the general public; as well as the art world – within the span of a year, NFT-backed virtual works of art have been reaching new height, from Beeple, Everydays: The First 5000 Days (March 2021 – US$ 69.3) to The Merge (December 2021 – US$ 91.8). Today, the most valuable living artist in history is a virtual work of art author (Pak, author of The Merge).
With the rise of this new market, numerous stakeholders have tried to expand the protection of these digital creations through trademark registration before the European Union Intellectual Property Office (EUIPO) or its national counterparts in the European Union. However, they also found that the current 11th Nice Classification lacked clarity and precision on that matter. Indeed, the “virtual goods” may represent an electronic version of an existing tangible goods, but the applicants were likely to face rejection from the trademark offices, as the classification as a “good” still requires a physical embodiment.
In June 2022, the EUIPO finally addressed this issue to provide clarity, by going on the record to consider virtual products (including NFTs, or more likely the underlying virtual works to which such NFTs would be appended) as digital content or images, hence belonging to Class 9 which encompasses instruments for science or research, audio-visual and information technology equipment, as well as security and safety equipment. This new approach is part of its 2023 draft Guidelines which aims at harmonising IP practices across the EUIPO, increasing predictability and ensuring compliance, consistency and coherence.
Consequently, virtual goods and NFTs will be added to the upcoming 12th edition of the Nice Classification. However, the EUIPO rightfully considers NFTs to be certificates, distinct from the virtual element they authenticate. A specific wording has been established in the draft directive, namely “downloadable digital files authenticated by non-fungible token”, the term “non-fungible token” being deemed, in and of itself, not acceptable by EUIPO without a proper link to the underlying asset.
The EUIPO is not going to further modify this Class to address all possible situation, but advises applicants to specify which content the virtual products are referring to, e.g.“downloadable virtual products, namely virtual pieces of furniture.”
Concerning virtual services and NFTs, the actual principles are maintained and applicants need to refer to pre-established definitions.
This decision from EUIPO allows for the facilitation of virtual products and NFTs trademarks. Internal and external stakeholders have until 3 October 2022 to escalate observations on draft directives to the EUIPO.
First publication on the K&L Gates IP Blog in collaboration with Louise Bégué
UK: Government Publishes New Proposed Data Protection Law
July 27th, 2022 | Posted by in English | Europe | Legislation | Privacy - (0 Comments)The UK Government has finally published its highly anticipated Data Protection and Digital Information Bill (the Bill), marking the first significant post-Brexit change to the UK’s data protection regime. Following Brexit, the UK continued following the EU General Data Protection Regulation, incorporated into UK law as the UK GDPR, and the UK implementation of the EU ePrivacy Directive, the Privacy and Electronic Communications Regulations 2003 (PECR), also remained in force.
The Bill is only at the start of the legislative process, and it remains to be seen how it will develop if it is amended during its passage through Parliament, but early indications are that it represents more of an evolution than a revolution in the UK regime. That will come as a relief to businesses that transfer personal data from the EU to the UK, because it reduces the risk that the EU might rescind the UK’s adequacy status.
For a start, the Bill actually preserves the UK GDPR, its enabling legislation the Data Protection Act 2018, and the PECR, because it is drafted as an amending act rather than a completely new legislative instrument. This does not contribute to user-friendliness, as interpreting UK data protection requirements will require a great deal of cross-referencing across texts.
The more eye-catching proposed changes in the Bill include:
- The inclusion of a list of “legitimate interests” that will automatically qualify as being covered by the lawful basis in UK GDPR Article 6(e).
- Some limitations on data subject access requests, such as the possibility of refusing “vexatious or excessive” requests.
- More exemptions from the requirement to obtain consent to cookies.
- Much higher fees for breach of PECR.
The Bill will now progress through various Parliamentary stages over the coming months in order to become law.
First Publication: K&L Gates Cyber Law Watch in collaboration with Noirin McFadden & Keisha Phippen
France: New Requirements Concerning the Sale of Digital Goods
July 21st, 2022 | Posted by in eCommerce | France | internet | IT | Legislation - (0 Comments)On 29 June 2022, Decree n° 2022-946 (the “Decree”) supplemented the regulatory framework resulting from the Ordinance n° 2021-1247 of 29 September 2021 on the legal warranty of conformity for goods, digital content and digital services (the “Ordinance”). Stakeholders have under 1 October 2022 to implement the following measures, aiming at protecting consumers of digital goods.
1. General information about the Ordinance
Implementing two 2019 European directives on certain aspects of contracts for the supply of digital content and digital services and contracts for the sale of goods (respectively Directives (EU) 2019/770 and 2019/771 dated 20 May 2019), the Ordinance aimed to foster the safety of consumers when purchasing both physical and digital goods and, to a lesser extent, to reduce the environmental impact of digital goods.
This Ordinance amended the French Consumer Code in depth, notably by expanding the legal warranty of conformity, which now covers digital products and services but is also applicable to both B2C as well as B2B contracts, when the latter are executed between professionals and non-professionals (i.e. legal entities acting outside of their direct professional activities).
(more…)GDPR: The Importance of Managing DSARs
June 22nd, 2022 | Posted by in France | Privacy - (0 Comments)Individuals having difficulties in obtaining responses to their personal data subject access requests (DSAR) from French telephone operator Free Mobile filed several complaints before the Frenchdata protection authority (CNIL). These requests related to accessing their personal data and objecting to receiving direct marketing messages by electronic means. After its investigations, the CNIL imposed a fine of €300,000 against Free Mobile on 28 December 2021.
(more…)UK: Queen’s Speech Heralds GDPR Overhaul
June 7th, 2022 | Posted by in Brexit | Privacy - (0 Comments)In the Queen’s speech at the state opening of parliament on 10 May 2022, the UK government announced its intention to change the UK’s data protection regime in a new Data Reform Bill. This follows a consultation last Autumn on how the UK GDPR could be reformed following the UK’s exit from the European Union (EU).
The government claims that the new Bill would:
- Create a data protection framework focused on “privacy outcomes” that would reduce the burdens on businesses, and a “clearer regulatory environment” to encourage “responsible innovation”.
- Ensure that citizens’ data is “protected to a gold standard”, while enabling more efficient sharing of data between public bodies.
- Modernise the Information Commissioner’s Office and require it to be “more accountable to Parliament and the public”.
The Queen’s speech also announced plans to replace the Human Rights Act 1998, which incorporated the European Convention on Human Rights into UK law. According to the government a new “Bill of Rights” would “end the abuse of the human rights framework and restore some common sense to [the] justice system”. This would be achieved by “establishing the primacy of UK case law”, which means that UK courts would no longer be required to follow the case law of the European Court of Human Rights.
Taken together, both of these proposed new legislative measures could change the balance of protection of individuals’ rights in the UK, both generally and in the specific area of personal data regulation. Their development will be closely watched by data protection professionals, because any significant changes in the UK data protection regime could prompt the EU to review its post-Brexit UK adequacy decision, potentially leading to the end of decades of seamless transfers of personal data from the EU to the UK.
First publication on K&L Gates Cyber Law Watch in collaboration with Nóirín McFadden
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