Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

An alleged publicity stunt by the Dutch brewer Bavaria resulted in the arrest in South Africa recently of two Dutch women on charges of organising "unlawful commercial activities".

The two women along with 34 others appeared in a prominent pitch side position at the recent Netherlands v Denmark World Cup game in Soccer City Stadium in Johannesburg wearing orange mini-dresses apparently associated with Bavaria.

As soon as the stadium television cameras captured pictures of the group, they were ejected from the stadium with two being arrested. They were subsequently released.

FIFA, the owner of the rights to the 2010 World Cup in South Africa, has stated that it is looking into "all available legal remedies" against Bavaria. The right to associate ones brand with the World Cup is licensed by FIFA to official sponsors wishing to promote their brands in conjunction with the event. Companies not willing to pay the substantial fees (often millions of dollars) involved to secure rights of association but which are still determined to promote their products at these world wide events tend to adopt the type of ambush marketing stunt alleged here. It appears that Bavaria sold the mini-dresses in question in the Netherlands prior to the World Cup as part of a gift pack with the only distinguishing feature of the garments being a tiny outer label carrying the brand's name. In an effort to raise the Dutch public's awareness of their promotion Bavaria arranged for one of the mini-dresses to be modelled by the high profile wife of a Dutch player prior to the tournament.

Because FIFA depends on sponsorship fees to run events like the World Cup its sponsors in turn enjoy exclusivity of the exploitation of the brands associated with the World Cup. This exclusivity is enforced in conjunction with the host nation by imposing fines for infringements and in this instance the possibility of criminal sanctions which are not often associated with the infringement of such rights. As with all successful ambush marketing stunts the publicity gained is substantial and highly beneficial to the company.

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On 19 May 2010, the Supreme Court set aside a judgment and Order of the High Court and substituted an Order refusing Glanbia’s application for revocation of Irish Registered Trademark No. 211092 ESSENSIS in Class 29.

 Danone had filed proceedings against Glanbia in early 2006, claiming that Glanbia, through its use of the mark or sign ESSENCE in relation to a yoghurt product, had infringed Danone’s registered trademark ESSENSIS in the State. Glanbia by way of counterclaim, claimed that Danone did not have any legitimate entitlement to maintain the trademark registration because it had not put the registered trade mark to genuine use in the State in relation to the goods for which it was registered within the statutory period of five years from the date of publication of the registration. Glanbia further claimed that the application for registration of the trademark had been made in bad faith and for that reason should be declared invalid.

The High Court found that Danone had failed to establish any genuine use in the State of the ESSENSIS trademark in relation to yoghurt, and that any use of the trademark had been solely in relation to a culture within Danone’s “Activia” yogurt – for which no registration in Class 1 existed. Accordingly, it held that Glanbia was entitled to an Order for its revocation under s.51(1)(a) of the Trade Marks Act, 1996 (TMA 1996), but it did not succeed on its claim that the trademark had been registered in bad faith.

In a judgment delivered by Ms. Justice Fidelma Macken, the Supreme Court concluded that the learned High Court judge “applied an unduly restrictive interpretation” of the principles set out in ECJ case no.C-40/01 Ansul B.V. v Ajax Brandbeveilinging B.V. [2003].

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The European Commission has recently approved in Decision 2010/87/EU new model clauses for the transfer of personal data from a data controller established in the EU to a data processor established in a third country outside the EEA.  The new "data controller to data processor" model clauses, which replace the clauses approved by Decision 2002/16/EC, came into effect on 15 May 2010.  The "data controller to data controller" model clauses (approved by Decisions 2001/497/EC & 2004/915/EC) remain unchanged. Pursuant to the EU Data Protection Directive 95/46/EC personal data may only be transferred to countries outside the European Economic Area if that recipient country ensures an adequate level of data protection, or one of a limited number of specified exemptions applies (such as the data subject giving his/her consent to the transfer). 

This means that from 15 May 2010, any data controller wishing to demonstrate “adequacy” by using the EU “data controller to data processor” model clauses will need to use these new 2010 model clauses.

Existing "data controller to data processor" contracts concluded under clauses approved by Decision 2001/16/EC will remain valid, unless the parties to the contract wish to make changes to the existing contract.  In that event the parties will need to enter into a new contract, which includes the new model clauses.

The main change implemented by the new "data controller to data processor" model clauses is that they contain express provisions allowing the outsourcing by the data processor of its processing activities to another sub-processor(s).  The previous "data controller to data processor" model clauses had been criticised for not taking into account the practice of more globalised data processing activities and the onwards transfers of data from a data processor established in a third country to another non-EEA sub-processor. The new model clauses contain a number of restrictions in respect of any sub-processing activities.  The data importer is required to inform the data exporter and obtain its prior written consent before disclosing the personal data to a third party processor.  In addition, the sub-processing must consist only of the same operations agreed in the contract between the data exporter and the data importer.  The data importer must also enter into a written contract with the sub-processor, incorporating the same model clauses as the contract between the data exporter and the data importer, and must provide the data exporter with a full copy of the sub-contract. 

The new 2010 model clauses are available to download from the EU’s Eur-Lex website: eur-lex.europa.eu/LexUriServ/LexUriServ.do(pdf.)

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The much anticipated file sharing case EMI & Ors v UPC began this morning in the Commercial Court before Mr Justice Charleton.  

The choice of Judge is of interest to the case in light of his recent decision in the related EMI Records & Ors -v- Eircom Ltd case, where he approved the "three strikes" policy by Eircom (see previous entry) from a data protection perspective.

In these proceedings, he will address the substantive issue of whether UPC can be held accountable for illegal filseharing carried out by its subscribers. This landmark case is being closely watched by observers both at home and abroad - we will post on developments as they occur.

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IDA Ireland, Ireland’s inward investment promotion agency, has recently announced a number of significant technology investments into Ireland:

• MFG.com to establish EMEA Operations Centre in Drogheda: MFG.com is the largest online sourcing marketplace in the world. Commenting on the decision to locate in Ireland, Steffan Bachmann, General Manager, Europe, said that “Drogheda was a natural choice for our EMEA expansion, given the flexible, highly qualified workforce and the increasingly competitive, pro-business environment.”
• Space Firm AMPAC-ISP launches European headquarters in Dublin: rocket engines will be developed and built at the new AC-ISP space technology development and manufacturing centre in Dublin. Launching the headquarters, Mr O’Keefe, the Minister for Enterprise, Trade and Innovation, said it would be a 'space technology development centre of excellence'.
• ENERCON establishes technical services operations in Kerry: the announcement by ENERCON, one of the world’s largest manufacturers of wind turbines, will see the company create an Irish headquarters in order to service Ireland and the UK.
• Web Localisation Company to establish European Headquarters in Kerry: Straker has developed a technology and services platform that massively simplifies the process of web localisation, and is an emerging leader in this area. David Sowerby, Director, Straker Europe, said, ‘we looked at a number of options for our European headquarters, but with Ireland widely recognized as the centre for Localisation globally it was one of the first locations we considered.”

Click here to download details of IDA Ireland investment and job announcements of the year to date.  This shows that, despite the deep recession, Ireland reamins a favoured location for foreign companies looking to establish a European headquarters.

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Jeremy Philips of IPKat fame will deliver the annual lecture of The Copyright Association of Ireland (CAI) on Thursday 17th June 2010 at 6.30pm in the Dublin Chamber of Commerce, Clare Street, Dublin 2. Attendance is free of charge.

The lecture, entitled ‘Exiles and Orphans’, will address “the phenomenon of the ‘orphan work’, its exile from mainstream copyright practice and its recent re-emergence on the agenda of copyright reform”, a topic that Philips has previously written about in the Journal of Intellectual Property Law & Practice. For further information, check the CAI website by clicking on this link.
 

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The recent decision of the Minister for Communications, Energy and Natural Resources to propose that Ireland's Six Nations and Heineken Cup rugby games be designated as "free to air" events, has provoked a storm of media commentary and a strong reaction from the Irish Rugby Football Union (IRFU).

Much of the debate in the media has been focused on the likely financial impact of the Minister's proposals. Supporters of the proposals argue that IRFU will not lose significant revenues, whereas the IRFU estimates that it will lose up to €12 million on an annual basis if the proposal is implemented.

The wide disparity in the figures cited by both sides is derived in part because of a difference of understanding as to the impact on licensing models that results from designating these sporting events as free to air.

There are two dimensions to the financial debate- (a) the impact on the domestic broadcasting rights market and (b) the potential impact on overseas broadcasting revenue that the IRFU generates. Ireland's Six Rugby games are currently shown free to air on RTE for the domestic market and are reported to generate revenues of €3 million per annum with an additional €8 million earned by the IRFU from showing Ireland's Six Nations games overseas and €2-3 million from the Heineken Cup games that are shown on Sky.

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