WP_Query Object
(
[query] => Array
(
[paged] => 5
[news-type] => blog-en
)
[query_vars] => Array
(
[paged] => 5
[news-type] => blog-en
[error] =>
[m] =>
[p] => 0
[post_parent] =>
[subpost] =>
[subpost_id] =>
[attachment] =>
[attachment_id] => 0
[name] =>
[pagename] =>
[page_id] => 0
[second] =>
[minute] =>
[hour] =>
[day] => 0
[monthnum] => 0
[year] => 0
[w] => 0
[category_name] =>
[tag] =>
[cat] =>
[tag_id] =>
[author] =>
[author_name] =>
[feed] =>
[tb] =>
[meta_key] =>
[meta_value] =>
[preview] =>
[s] =>
[sentence] =>
[title] =>
[fields] =>
[menu_order] =>
[embed] =>
[category__in] => Array
(
)
[category__not_in] => Array
(
)
[category__and] => Array
(
)
[post__in] => Array
(
)
[post__not_in] => Array
(
)
[post_name__in] => Array
(
)
[tag__in] => Array
(
)
[tag__not_in] => Array
(
)
[tag__and] => Array
(
)
[tag_slug__in] => Array
(
)
[tag_slug__and] => Array
(
)
[post_parent__in] => Array
(
)
[post_parent__not_in] => Array
(
)
[author__in] => Array
(
)
[author__not_in] => Array
(
)
[search_columns] => Array
(
)
[meta_query] => Array
(
)
[ignore_sticky_posts] =>
[suppress_filters] =>
[cache_results] => 1
[update_post_term_cache] => 1
[update_menu_item_cache] =>
[lazy_load_term_meta] => 1
[update_post_meta_cache] => 1
[post_type] =>
[posts_per_page] => 10
[nopaging] =>
[comments_per_page] => 50
[no_found_rows] =>
[taxonomy] => news-type
[term] => blog-en
[order] => DESC
)
[tax_query] => WP_Tax_Query Object
(
[queries] => Array
(
[0] => Array
(
[taxonomy] => news-type
[terms] => Array
(
[0] => blog-en
)
[field] => slug
[operator] => IN
[include_children] => 1
)
)
[relation] => AND
[table_aliases:protected] => Array
(
[0] => wp_term_relationships
)
[queried_terms] => Array
(
[news-type] => Array
(
[terms] => Array
(
[0] => blog-en
)
[field] => slug
)
)
[primary_table] => wp_posts
[primary_id_column] => ID
)
[meta_query] => WP_Meta_Query Object
(
[queries] => Array
(
)
[relation] =>
[meta_table] =>
[meta_id_column] =>
[primary_table] =>
[primary_id_column] =>
[table_aliases:protected] => Array
(
)
[clauses:protected] => Array
(
)
[has_or_relation:protected] =>
)
[date_query] =>
[queried_object] => WP_Term Object
(
[term_id] => 71
[name] => Blog
[slug] => blog-en
[term_group] => 0
[term_taxonomy_id] => 71
[taxonomy] => news-type
[description] =>
[parent] => 0
[count] => 92
[filter] => raw
)
[queried_object_id] => 71
[request] => SELECT SQL_CALC_FOUND_ROWS wp_posts.ID
FROM wp_posts LEFT JOIN wp_term_relationships ON (wp_posts.ID = wp_term_relationships.object_id) LEFT JOIN wp_icl_translations wpml_translations
ON wp_posts.ID = wpml_translations.element_id
AND wpml_translations.element_type = CONCAT('post_', wp_posts.post_type)
WHERE 1=1 AND (
wp_term_relationships.term_taxonomy_id IN (71)
) AND ((wp_posts.post_type = 'post' AND (wp_posts.post_status = 'publish' OR wp_posts.post_status = 'acf-disabled' OR wp_posts.post_status = 'tribe-ea-success' OR wp_posts.post_status = 'tribe-ea-failed' OR wp_posts.post_status = 'tribe-ea-schedule' OR wp_posts.post_status = 'tribe-ea-pending' OR wp_posts.post_status = 'tribe-ea-draft'))) AND ( ( ( wpml_translations.language_code = 'en' OR (
wpml_translations.language_code = 'nl'
AND wp_posts.post_type IN ( 'attachment' )
AND ( (
( SELECT COUNT(element_id)
FROM wp_icl_translations
WHERE trid = wpml_translations.trid
AND language_code = 'en'
) = 0
) OR (
( SELECT COUNT(element_id)
FROM wp_icl_translations t2
JOIN wp_posts p ON p.id = t2.element_id
WHERE t2.trid = wpml_translations.trid
AND t2.language_code = 'en'
AND (
p.post_status = 'publish' OR p.post_status = 'private' OR
( p.post_type='attachment' AND p.post_status = 'inherit' )
)
) = 0 ) )
) ) AND wp_posts.post_type IN ('post','page','attachment','wp_block','wp_template','wp_template_part','wp_navigation','our_sector','our_rechtsgebieden','acf-field-group','tribe_venue','tribe_organizer','tribe_events','mc4wp-form','slider-data','actualiteiten','accordion','failissementens','advocaten','blogs','seminar','juridisch-medewerker','backoffice','rechtsgebied-detail' ) ) OR wp_posts.post_type NOT IN ('post','page','attachment','wp_block','wp_template','wp_template_part','wp_navigation','our_sector','our_rechtsgebieden','acf-field-group','tribe_venue','tribe_organizer','tribe_events','mc4wp-form','slider-data','actualiteiten','accordion','failissementens','advocaten','blogs','seminar','juridisch-medewerker','backoffice','rechtsgebied-detail' ) )
GROUP BY wp_posts.ID
ORDER BY wp_posts.menu_order, wp_posts.post_date DESC
LIMIT 40, 10
[posts] => Array
(
[0] => WP_Post Object
(
[ID] => 31891
[post_author] => 65
[post_date] => 2022-08-31 16:21:54
[post_date_gmt] => 2022-08-31 14:21:54
[post_content] => With a trademark registration, a trademark owner acquires the exclusive right to use a trademark [word and/or logo] for certain products or services.
The trademark owner can assert the trademark right against anyone who uses the trademark or a sign very similar to the trademark. It should relate to the use of products or services for which the mark is registered. Therefore, much depends on a good description of the products and/or services for which a trademark is registered. This is where our knowledge and experience come into play. We know what's important in a legal dispute, as we also sue for trademark infringement. And this knowledge and experience is also useful during the registration of trademarks.
Where do you want protection?
You only have protection where you register the trademark.
Benelux
We have a single trademark registration system in the Benelux. With a registration, a trademark owner has protection in all countries of the Benelux. That is in Belgium, Luxembourg and the Netherlands.
European Union
We have a Community trademark within the European Union. EUIPO in Alicante [Spain] handles applications for the Community trademark. With a registration, the trademark owner has protection in all countries of the European Union. This means that if a word or logo is not a valid trademark in one of the European Union countries, the application will be rejected for the entire European Union. For example, if a word in one of the European Union countries describes the products/services. This makes it important to do an extensive trademark research.
International
Trademark registration for different countries can be done through a single agency [WIPO]. Countries such as the USA, China and the EU are members. The application is made to WIPO and then split into trademark applications for the countries selected in the application. For this reason, the choice of countries for which protection is requested depends on the countries where the trademark will be used.
Obligations of the trademark owner
A trademark must be normal used in commerce within five years of the registration. Therefore, a trademark can also be registered for a country where it can be used in the future. For a Community trademark, it must be used in at least three countries of the European Union within five years.
Why BG.legal?
We specialize in advising and litigation in intellectual property law, including trademark law. We are doing research on the usability of trademarks. We also register, manage and track trademarks. We also assist clients in objection and infringement lawsuits and draft contracts for the transfer of trademarks.
When applying for a trademark, we will prepare the application, search for the same word mark and send you the certificate of the trademark.
Costs
We work with fixed rates to keep costs as clear as possible. The costs depend on the number of fields and classes applied for in a trademark application.
More information?
For more information, please contact one of our IP specialists.
Click here for the Turkish version.
[post_title] => Why should you register a word or logo as a trademark?
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => why-should-you-register-a-word-or-logo-as-a-trademark
[to_ping] =>
[pinged] =>
[post_modified] => 2022-08-31 16:24:17
[post_modified_gmt] => 2022-08-31 14:24:17
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=31891
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[1] => WP_Post Object
(
[ID] => 31579
[post_author] => 6
[post_date] => 2022-08-08 16:34:37
[post_date_gmt] => 2022-08-08 14:34:37
[post_content] => Deadly diseases still exist to this day and they need to be addressed. Thus, we have to predict, prevent and respond to the outbreak of deadly viruses like COVID-19. Artificial Intelligence (‘AI’) technology may be of help here, as it combines the computational capacity of a computer with the reasoning ability of humans. AI technologies (e.g. Machine Learning, Natural Language Processing, Deep Learning) are applied in all stages of drug discovery, for example: target validation, identification of biomarkers, lead optimization, annotation and analysis of clinical data in trails, pharmacovigilance and clinical use optimization. Nonetheless, these AI applications create both regulatory and legal challenges.
The AI Act, an initiative of the European Commission, will also have its effect on the application of AI in the pharmaceutical industry. This legal framework addresses, inter alia, the risks specifically created by AI applications. Particularly when AI systems are applied in a pharmaceutical setting (e.g. health apps), or when software is classified as a medical device on the basis of the Medical Device Regulation, the integrated AI system will fall within the high risk category. Consequently, AI systems in the field of pharmaceutics have to comply with the strict requirements set in place for a high risk AI system.
Additionally, the AI Act introduces the AI regulatory Sandbox. This is an instrument where innovators and regulators may connect with one another. Subsequently, it provides a controlled environment for them to cooperate. It should facilitate the development, testing and validation of innovative AI systems, but simultaneously ensuring compliance with the AI Act. Therefore, this instrument offers interesting possibilities for AI systems used in pharma. See this blog for more information on the AI Act.
Regulatory challenges
The International Coalition of Medicines Regulatory Authorities (ICMRA) has made a report of a horizontal scanning exercise in AI.[1] In order to examine the challenges the use of AI poses to global medicine regulation, two hypothetical case studies were developed.
a. AI in clinical medicine development and use: A Central Nervous System App
- Regulators need to take into consideration the context of use of the AI system and its software and algorithm(s);
- Validation may require access to the underlying algorithm and datasets by regulators;
- Updates to the AI software or hardware would need re-testing or bridging studies to ensure reproducibility/validation.
b. Hypothetical case study: AI in pharmacovigilance
- The challenge lies in creating the right balance between AI and human oversight of signal detection and management;
- AI use may discover safety signals that are more difficult to detect with current methods;
- Software updates that affect the data will need to be communicated to regulators.
Recommendations:
- The validation will require access to the employed algorithms and underlying datasets. Legal and regulatory frameworks may need to be adapted to ensure such access options.
- Consider the concept of a Qualified Person responsible for AI/algorithm(s) oversight compliance.
Legal challenges
- Regulatory status of AI/ML software
- Black box: explainable AI
- Securing data against cyber attacks
1. Algorithm
In most cases the
algorithm (software) will be developed by a data science company (and not by the pharmaceutical company). Therefore, parties need to address issues like liability, a license for the use of the software service/updates of the software by way of an agreement. Furthermore, the data science company needs to develop the software in such a way that the pharmaceutical company can meet the regulatory requirements (transparency, explainability and a possible regulatory access to the employed algorithms and underlying datasets). The pharmaceutical company will also need a license to use the software. This license agreement needs to address issues regarding ownership and usage rights. One of the reasons for this is that, from a legal perspective, ‘
ownership’ (in Dutch: ‘eigendom’) of data is not possible. On the other hand, the data science company may want to use the algorithm or knowhow related to developing the algorithm, for other customers. This therefore needs to be addressed in the agreement.
Legal issues:
- IP related to the software/data sets used to develop and train the algorithm.
- IP related to AI and the outcome of the AI system (who has rights to the newly structured data, the correlations derived from the data, the compounds discovered).
- Exit rights: can the pharmaceutical company transfer the algorithm/data to another data science company.
- If the data science company may use the knowhow for other customers.
- Liability for the outcome of the AI system.
- Non-performance of the AI system.
- Explainable XAI: black box prediction model.
2. Dataset
There is a rapid growth in all kind of
datasets that are useful in the process of drug discovery. In each phase of drug discovery different sources are used. The legal challenges that will arise in a certain case will depend on the nature of the dataset. In most cases the dataset will contain non-personal (health) data. When AI is used for target identification or lead optimization, the data set will not contain personal data. However, if AI is used for disease identification of in a diagnostic contact or in clinical trials, the data will contain personal (health) data. This will also be the case in the phase of monitoring the medicines or the medical treatment. This is especially true for rare diseases during this phase, as the number of patients will be small. For this reason, it will become increasingly difficult to anonymize the data in a way that the data cannot be linked to a specific person. When the dataset does contain personal (health) data, ethical aspects need to be taken into consideration:
transparency and explainability (problem of opacity); equality, fairness and non-discrimination (problem of bias) and data quality and data sharing (problem of privacy).
Legal issues:
- Privacy: does the dataset contain personal (health) data
- Quality of the dataset used is bias
- Data sharing: conditions for data sharing
- IP related to the data set
- IP related to the AI system
- Liability for the outcome of the AI system
Contact
For more information in relation to AI in pharma, contact
Jos van der Wijst.
[1] ICMRA, Informal Innovation Network, Horizon Scanning Assessment Report – Artificial Intelligence, 6 August 2021
[post_title] => AI in Pharma
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => ai-in-pharma
[to_ping] =>
[pinged] =>
[post_modified] => 2022-08-08 16:44:40
[post_modified_gmt] => 2022-08-08 14:44:40
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=31579
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[2] => WP_Post Object
(
[ID] => 31582
[post_author] => 6
[post_date] => 2022-08-08 16:31:46
[post_date_gmt] => 2022-08-08 14:31:46
[post_content] => The European Commission has proposed a legal framework on Artificial Intelligence (‘AI’). This AI Act proposes a risk based approach with clear requirements and obligations regarding specific uses of
AI. More specifically, the AI Act defines 4 levels of risk in AI: (i) Unacceptable risk, (ii) High risk, (iii) Limited risk and (iv) Minimal / No risk. All AI systems need to be categorized, based on a self-assessment, in one of these levels.
Most of the AI systems used in
Pharma
will probably either fall within level III or IV. If the AI system forms a component of a product (e.g. the Central Nervous System App in the ICMRA report
[1]) it will probably be considered a high risk level AI System. As a result, these AI systems will be subject to strict obligations. For example:
- Adequate risk assessment and mitigation systems;
- High quality of the datasets feeding the system to minimize risks and discriminatory outcomes;
- Logging of activity to ensure traceability of results;
- Detailed documentation providing all information necessary to the system and its purpose for authorities to assess its compliance;
- Clear and adequate information to the user;
- Appropriate human oversight measures to minimize risk;
- High level of robustness, security and accuracy.
Moreover, as
key risks for AI related to health are mentioned
[2]:
-
- Bias in training data may lead to discrimination and individual injury/death (i.e., racial bias may lead to incorrect diagnoses) and deepen existing socio-economic inequalities;
- Technical system errors in AI could lead to mass patient injuries because of widespread use; Increased use and sharing of health data threatens privacy and data protection rights of patients;
- Lack of transparency and explainability threatens patients’ rights to information and to informed consent to medical treatment;
- Issues with cybersecurity threaten patients’ health in the case of cyberattacks on for example insulin pumps and pacemakers.
It is therefore suggested to classify all health-related AI systems as ‘high risk’ as referred to in Annex III of the AI Act (i.e. public health, pharmaceuticals and wellbeing).
AI regulatory sandbox
The proposal for the AI Act also introduces the instrument of the
AI Regulatory Sandbox. This is “a controlled environment that facilitates the development, testing and validation of innovative AI systems for a limited time before their placement on the market or putting into service”.
The benefits of a regulatory sandbox in pharma are:
- Early involvement of the regulator (aim of mutual learning and adaptation)
- Faster adaptation of current regulations to suit the new product or service.
Contact
For more information in relation to (legal aspects of) AI, please contact
Jos van der Wijst.
[1] ICMRA, Informal Innovation Network, Horizon Scanning Assessment Report – Artificial Intelligence, 6 August 2021
[2] https://haiweb.org/prioritise-health-in-the-artificial-intelligence-act
[post_title] => AI Act and Pharma / Health
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => ai-act-and-pharma-health
[to_ping] =>
[pinged] =>
[post_modified] => 2022-08-08 16:37:32
[post_modified_gmt] => 2022-08-08 14:37:32
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=31582
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[3] => WP_Post Object
(
[ID] => 31410
[post_author] => 68
[post_date] => 2022-07-27 11:09:03
[post_date_gmt] => 2022-07-27 09:09:03
[post_content] => It has become lucrative for businesses to generate revenue through sourcing and purchasing goods elsewhere. However, these businesses must also be aware of the accompanying risks in doing so. If the purchased goods constitute an infringement of intellectual property rights of a third party, the purchaser could be held liable for the damages resulting from this infringement. In a recent case, this issue is addressed by the court of appeal (hereinafter: the Court) in the Hague. This blog post discusses this particular case and more specifically what a purchasing company could do in order to guard itself against liability in case an
IP infringement occurs.
Case facts
Van Caem Sports (hereinafter: VCS) is a store specializing in sports goods. In 2013 VCS purchased Converse shoes from EN-S Sports (hereinafter: EN-S) twice. Subsequently, Converse sued VCS for trademark infringement and ordered VCS to pay the damages for the sale of the infringing shoes. The issue in the present case was whether the infringing shoes were supplied by EN-S and whether EN-S is obligated to indemnify VCS for the damages it must pay as a result of
the trademark infringement.
In the ruling at first instance, VCS's claims were rejected as VCS was unable to provide sufficient evidence. VCS only submitted unverifiable statements from its Business Controller and CFO, but no verifiable data from its records showing the path taken by the two batches of shoes supplied by EN-S. After that, VCS lodged an appeal.
The Court’s decision
This time around, the Court held that VCS had succeeded in proving that the shoes originated from EN-S. The trademark infringement in the main case was not based on the fact that the shoes were counterfeit, but on the fact that the shoes had not been marketed by Converse in the EEA. As a result, the question of whether the shoes were counterfeit was not of relevance. Since the Court was of the opinion that no exhaustion of trademark rights had taken place, the shoes were not freely marketable in the EEA. Moreover, the Court ruled that EN-S is obliged to indemnify VCS on the basis of the indemnification statement and a closed chain of administration. As EN-S could not further invoke VCS's own fault or estoppel, the Court was of the opinion that the claims of VCS are admissible if EN-S does not succeed in
providing evidence to the contrary.
Conclusion
This case clearly shows that it is of utmost importance that a purchasing party is able to provide evidence that the infringing goods seized are the same goods sold and delivered by the contracting party. In the present case, the Court ought the indemnification statement including a lawyer’s letter and a closed chain administration to be sufficient as evidence.
At BG.legal we can help you gather this evidence by, inter alia, drafting an indemnification statement including a lawyer's letter as well as assisting in the establishment of a closed chain of administration.
If you have any questions regarding
IP infringements and damages for purchasing parties, please do not hesitate to
contact us.
[post_title] => Indemnification and IP infringement: a matter regarding shoes
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => indemnification-and-ip-infringement-a-matter-regarding-shoes
[to_ping] =>
[pinged] =>
[post_modified] => 2022-07-27 11:10:14
[post_modified_gmt] => 2022-07-27 09:10:14
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=31410
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[4] => WP_Post Object
(
[ID] => 30442
[post_author] => 78
[post_date] => 2022-06-01 09:31:11
[post_date_gmt] => 2022-06-01 07:31:11
[post_content] =>
When processing personal data, the controller must adhere at all times to the principle of transparency. In practice, this means that data subjects should be adequately informed about the different processing activities that might take place using their personal data. More often than not, this information is provided by means of a privacy policy. In this blog by Stan Elsendoorn, we shall take a closer look at the specific information that needs to be provided, as well as the core values that need to be taken into account when drawing up a privacy policy.
General requirements
Article 12 of the GDPR lists several requirements that should be kept in mind when writing a privacy policy. Each of these requirements shall be further explained below.
I. Concise, transparent, intelligible and in an easily accessible format
The information needs to be presented/communicated efficiently in order to avoid information fatigue, whilst also being intelligible, meaning that the information is
comprehensible by the average member of the intended audience.
II. Written in clear and plain language
The information should be provided in as simple a manner as possible, avoiding complex sentences and language structures.
Abstract or ambivalent terms which could leave room for different interpretations should be avoided. When targeting children, the controller should also ensure that the vocabulary, tone and style of the language used to communicate the information is appropriate to and resonates with children.
[1]
III. Delivered in a timely manner
The information must be provided in a timely manner. The specific time frame depends on the manner in which the personal data are obtained: when the personal data are
directly obtained or collected from the data subject, the information should be provided directly after obtaining the personal data. When the personal data are obtained from
third parties or other sources, the general rule is that the information should be provided
within a reasonable time period and
no later than one month after obtaining the personal data. This one-month time limit can be curtailed in the following situations: (i)
when the first communication with the data subject takes place prior to the one month time frame, or (ii)
when the personal data are disclosed to another recipient. In those situations, the information should (
at the very latest) be provided at the time of the disclosure and/or first communication with the data subject.
[2]
IV. Provided free of charge
Finally, it is not allowed to restrict access to a privacy policy through the use of a paywall or any other technical/financial means.
Necessary information
In addition to the aforementioned requirements, the following information – depending on the manner in which the personal data were obtained – should also be included when drawing up a privacy policy
Necessary information when the personal data is directly provided by the data subject (article 13 GDPR)
I. The identity and contact details of the controller;
II. (Where applicable) the contact details of the data protection officer;
III. The purpose and legal basis for the processing;
IV. (Where applicable) if the legal basis for the processing is a legitimate interest of the Controller, a description of said interests;
V. (Where applicable) the (categories of the) recipients of the personal data;
VI. (Where applicable) if the controller intends to transfer the personal data to a recipient in a third country for which the EU has not (yet) adopted an adequacy decision, the appropriate and/or suitable safeguards taken;
VII. The (criteria to determine the) period for which the personal data will be stored;
VIII. Information on the existence of data subject’s rights, including the right to request access, rectification or erasure of the personal data, the right to restrict or object to the processing of personal data as well ass the right to data portability;
IX. (Where applicable) if the legal basis for the processing activities is the consent of the data subject, the existence of the right to withdraw said consent at any given time;
X. The right to lodge a complaint with the supervisory authority;
XI. Whether the provision of personal data is part of a statutory or contractual requirement or obligation and the possible consequences of failing to provide the personal data;
XII. (Where applicable) Information on the existence of an automated decision-making system, including profiling, including meaningful information about the logic involved, the significance as well as the consequences that the system’s automated decision-making might entail for (the rights of) the data subject.
Obtained from third parties or other sources (article 14 GDPR)
When the personal data are obtained from third parties or different sources, the privacy notice
must contain the same information as mentioned above, with the exception of:
XI. Whether the provision of personal data is part of a statutory or contractual requirement or obligation and the possible consequences of failing to provide the personal data
Which must be replaced by:
XI. The source from which the personal data originate.
Conclusion
There are a lot of things to keep in mind when drawing up a privacy policy. One should not only take into account the aforementioned
prerequisites, but also
the way in which this information is conveyed to the data subject.
In need of a privacy policy or other GDPR-documentation? BG.Legal offers a GDPR-starterkit that is specifically tailored to entrepreneurs. For more information, please check the
following link.
[1] WP29,
Guidelines on transparency under Regulation 2016/679 (WP260 rev.01), 11
th of April 2018, rec. 12 to 16.
[2] Article 13.1 jo. 14.3 (a) to (c)
WP29,
Guidelines on transparency under Regulation 2016/679 (WP260 rev.01), 11
th of April 2018, rec. 26 to 28.
[caption id="attachment_29432" align="alignleft" width="240"]
Stan Elsendoorn,[/caption]
[post_title] => What information needs to be included in a privacy policy?
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => what-information-needs-to-be-included-in-a-privacy-policy
[to_ping] =>
[pinged] =>
[post_modified] => 2022-06-01 09:33:19
[post_modified_gmt] => 2022-06-01 07:33:19
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=30442
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[5] => WP_Post Object
(
[ID] => 29884
[post_author] => 65
[post_date] => 2022-04-07 10:31:43
[post_date_gmt] => 2022-04-07 08:31:43
[post_content] =>
Case facts
Globus has registered both the word and figurative mark MAXUS in 1996 at the German Patent and Trademark Office for the classes 1 through 9 and 11 through 34. Maxxus Group GmbH has sought action for a declaration revoking Globus’ marks on the ground of non-use in 2019. Maxxus supported its claim stating that Globus hasn’t used the marks over the past five years. In addition, Maxxus stated that it has browsed Globus’ webshop in which two results emerged. The results referred to a beverage store in Germany operated by a connected company to Globus. According to investigation, using a detective agency, it appeared that the store didn’t sell beverages containing the MAXUS trade mark. Globus disputed the contentions and stated that it used both marks at issue in such a way to preserve its rights over them. By not procuring more facts, Maxxus had fallen short of its burden of proof under German law, according to Globus.
German procedural law imposes next to the burden of setting out the facts for the plaintiff, a reciprocal obligation on the defendant. Each party is obligated to carry out investigations in their own sphere of activity. The referring court took the view that the Judgement of the
Ferrari-case
[1] doesn’t preclude the applicant from bearing a burden of setting out the facts. Therefore the following questions are referred to the CJEU.
Questions for a preliminary ruling:
‘Is
EU law, in particular with regard to [Directive 2008/05]], in particular in article 12, and Directive [2015/2436], in particular in Articles 16, 17 and 19, to be interpreted as meaning that the
effect utile of those provisions prohibits an interpretation of national procedural law which;
- Imposes on the applicant in civil proceedings for cancellation of a national registered trade mark on the ground of revocation for non-use a burden of setting out the facts, as distinguished from the burden of proof, and
- Requires the applicant, in the context of that burden of setting out the facts,
- To make, in such proceedings, substantiated submissions regarding the defendant’s non-use of the trade mark, to the extent that it is possible for the applicant to do so; and
- to carry out, for that purpose, its own research into the market, in a manner which is appropriate to the request for cancellation and to the specific nature of the trade mark concerned?’
Ruling by the CJEU
The
CJEU rejected that Article 16 and 17 are relevant to answering the preliminary question and therefore answers the question solely in the light of Article 19. And according to Article 19(1), the question of the burden of proof in respect of genuine use does not constitute a procedural provision falling within the competence of the Member State.
The CJEU stated as following:
”It is the proprietor of the mark at the best place to adduce evidence in support of the assertion that its mark has been put to genuine use”. This doesn’t mean that there are not standards for the application for a revocation of a trademark. According to the CEJU: “
that the applicant, in a given procedure, does not have to bear the burden of proof does not necessarily release that party from the obligation to provide a full statement of the facts upon which it bases its claims”.
The CJEU concludes with: “
however, it is clear from Article 19 of Directive 2015/2436 that an application for revocation of a trade mark on the basis of that provision is founded on the claim that the mark has not been put to genuine use by its proprietor. Such a claim, by its nature, does not lend itself to a more detailed statement”.
Thus the applicant is still not released of the burden of setting out facts as a basis to the revocation claim of a trade mark. However, the CJEU does conclude that the best place to procure evidence for genuine use is the proprietor.
Conclusion
Article 19 opposes a procedural rule of a Member State in revocation proceedings for non-use of a trade mark. Therefore, according to the court, this situation requires at least a substantiated, fact-based argument from the requesting party. This means that the requesting party should conduct a certain appropriate investigation before initiating the revocation proceedings.
Thus, before initiating an application for revocation on the ground of non-use of a trade mark, be aware that you must conduct an appropriate investigation to prove the non-use of that trade mark.
Case: ECLI:EU:C:2022:174
[1] C-720/18 and C-721/18, EU:C:2020:854
[post_title] => Burden of proving genuine use
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => burden-of-proving-genuine-use
[to_ping] =>
[pinged] =>
[post_modified] => 2022-04-07 13:35:12
[post_modified_gmt] => 2022-04-07 11:35:12
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=29884
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[6] => WP_Post Object
(
[ID] => 29548
[post_author] => 65
[post_date] => 2022-03-15 10:57:59
[post_date_gmt] => 2022-03-15 09:57:59
[post_content] =>
What is data?
The value of many companies lies more and more in the large amount of
data generated by the company, also known as 'data' or 'big data'. The value of the data is so great because it provides, for example, more insight into the behaviour of their customers, the production process, the service or the product itself. Products or the production process are adjusted and profit margins are increased. The demand for data and the number of companies meeting that demand are also growing very rapidly. These companies are mainly engaged in collecting and offering data.
On the other hand, there is the realisation that by processing data, companies and governments gain more insight not only into their own production processes and customers, but also into people's lives. These insights may lead to a breach of
personal privacy. The use of data, however, is unavoidable in today's society and this role will only increase in the coming years. The relatively new phenomenon of 'data', and especially the great value attached to it, creates new legal challenges. This already starts with the realisation that the concept of 'data' is very limited in our legislation. Important issues include the following:
- Ownership of data;
- Protecting data;
- Data sharing;
- Data and ethics;
- Privacy;
- Software as a Service (SaaS);
- Data as a Service (DaaS)
Knowledge from practice
BG.legal is one of the few law firms that combines substantive knowledge on data and AI from practice with legal knowledge. Robin Verhoef is a bachelor student of Data Science with a great interest in the legal aspects of data. Our lawyers in turn have taken various courses in the field of data and AI. Because of our strong combination, we understand our clients' product and can provide them with the best tailor-made solutions.
BG.legal follows the developments of data closely and is happy to advise you. The following companies have already been helped:
BG.legal is a member of the
NL AI Coalition and NVAIR (Dutch Association for AI and Robotics Law)
[post_title] => Data
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => data
[to_ping] =>
[pinged] =>
[post_modified] => 2022-03-15 10:57:59
[post_modified_gmt] => 2022-03-15 09:57:59
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=29548
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[7] => WP_Post Object
(
[ID] => 29546
[post_author] => 6
[post_date] => 2022-03-14 10:50:11
[post_date_gmt] => 2022-03-14 09:50:11
[post_content] => The European Commission has published a draft
AI (Artificial Intelligence)
Regulation. The current laws and regulations are inadequate for AI applications. The approach of this draft is to opt for human-centred AI. Developers of AI applications must assess for themselves in which of the four risk groups their applications fall. The higher the risk, the higher the requirements for that AI application. It will certainly take years before the AI Regulation will enter into force. In addition, there is a good chance that the draft will be adjusted in the coming period.
What does that mean for the AI applications that are currently being developed or used? Are there no rules for that?
For various AI applications, there are already laws and/or regulations that must be complied with.
For example:
- Medical Devices Regulation: for AI applications in medical devices
- Constitution + Human Rights Treaties: for protection of fundamental rights such as speech, privacy, self-determination.
- General Data Protection Regulation: when processing personal data
- Product safety regulations: when an AI application causes injury
- Consumer protection: when information obligations arise from these regulations
- Codes of conduct: when a sector lays down rules (code of conduct) for AI applications
- Contracts: when parties have agreed on rules for AI applications in an agreement
In short, even without an AI regulation, there are already laws and regulations that an AI application must comply with. For AI developers, this means that they must make an inventory of which laws and regulations the AI application must comply with, and whether they comply with them. If they do not, a customer/client may later claim that the AI application did not meet the legal requirements. This may lead to damage claims. As a user/client for the development of an AI application, you will have to ask a similar question. The same applies to supervisors of parties using an AI application.
AI compliance assessment
Therefore, it is wise for both
developers and
users of AI applications to determine in an AI compliance assessment which laws and regulations apply to the AI application and whether it complies with them. If they are not complied with, timely action can be taken to become compliant.
For more questions about this, or for guidance in performing an AI compliance assessment, please contact Jos van der Wijst.
[post_title] => There are already rules for AI applications
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => there-are-already-rules-for-ai-applications
[to_ping] =>
[pinged] =>
[post_modified] => 2022-03-15 10:51:16
[post_modified_gmt] => 2022-03-15 09:51:16
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=29546
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[8] => WP_Post Object
(
[ID] => 29543
[post_author] => 6
[post_date] => 2022-03-11 10:38:00
[post_date_gmt] => 2022-03-11 09:38:00
[post_content] => The government is starting to pay more and more attention to the supervision of
AI and its use. On our knowledge platform about legal aspects of Artificial Intelligence
legalair.nl we wrote two articles about it:
Regulator for algorithms? The coalition agreement states the intention to set up a new regulator that will focus on algorithms. Although there are already several regulators who deal with algorithms, there is no general regulator yet.
Starter Kit Fair Algorithms for Municipalities. In the Fair Algorithms project, a dashboard has been developed to help municipalities (and other organisations) develop and use algorithms. The dashboard contains a questionnaire that asks more questions based on previous answers and also explains points of interest.
What can we do for you?
BG.legal has a team of lawyers, paralegals and a data scientist who advise on legal aspects of AI.
Firstly, we help you to draft and review contracts for the use or development of AI applications so that you know where you stand and what you can expect from the application.
We can also help you with a check of existing applications by means of an AI Impact Assessment. In this process, we check whether an AI application complies with existing laws and regulations and with sector-specific codes of conduct. Besides the existing regulations, we also look at the EU proposal for a regulation for AI applications.
For questions, please contact Jos van der Wijst and Robin Verhoef.
[post_title] => AI: Supervision and Toolbox
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => ai-supervision-and-toolbox
[to_ping] =>
[pinged] =>
[post_modified] => 2022-03-15 10:40:14
[post_modified_gmt] => 2022-03-15 09:40:14
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=29543
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[9] => WP_Post Object
(
[ID] => 29536
[post_author] => 65
[post_date] => 2022-03-10 10:30:08
[post_date_gmt] => 2022-03-10 09:30:08
[post_content] => We are inclined to think that using the same trade name is not possible.
Is organisation A using a trade name? Then organisation B cannot use exactly the same name. If organisation B does it, this will quickly result in an infringement of the trade name right.
But it doesn't always have to be that way. I will explain how that can be.
WOW
I will take the recent
WOW judgment (in Dutch) as an example. The claimant in this case is Stichting WOW. Stichting WOW has registered a word and figurative mark with the Benelux Office for Intellectual Property (hereafter “
BOIP”).
In this case, Stichting WOW is suing the defendant WOW Lijnbaan B.V.. WOW Lijnbaan uses its trade name in various ways. What is clear is that it always uses the word 'WOW':
The question is whether WOW Lijnbaan is thereby infringing on the trademark and trade name rights of Stichting WOW.
Since the defendant's name is (at least partly) the same as the plaintiff's, we are inclined to think that there is infringement. But the court does not think so. Why is that?
Trade name
The basic principle is that an organisation may not use a trade name that is already in use at that time. There are exceptions to this principle, but I will not go into them now.
The court finds in this case that there is no confusion for the relevant public. The parties both serve a different geographical area. Stichting WOW is located in Rotterdam. WOW Lijnbaan is located in Amsterdam. The fact that WOW Lijnbaan also has plans to open a branch in Rotterdam does not matter, according to the court.
Trademark infringement
So is there an infringement of the WOW
trademark? No. The court ruled that the use of WOW has little distinctive character. It is not very creative. And so the scope of protection is small.
But that is not the only thing that is relevant in this case. The court also considered that the parties' use of the WOW signs was not identical. There are differences in their use. For example, because Lijnbaan WOW is almost always used in combination with the words "burgers & fries".
The court also finds it implausible that the public will think that the signs of WOW lijnbaan originate from Stichting WOW. So that parties in this case are mixed up. The court has ruled that the origin of the WOW signs cannot be mistaken. And so there is no trademark infringement.
Conclusion
The more original the trade name, the better. Creative trade names have a greater scope of protection. Non-creative names can also be protected. However, if a different geographical area and a different type of use of the name are involved, this protection can still be circumvented.
[post_title] => The same trade name does not constitute an infringement. How can that be?
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => the-same-trade-name-does-not-constitute-an-infringement-how-can-that-be
[to_ping] =>
[pinged] =>
[post_modified] => 2022-03-15 10:32:37
[post_modified_gmt] => 2022-03-15 09:32:37
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=29536
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
)
[post_count] => 10
[current_post] => -1
[before_loop] => 1
[in_the_loop] =>
[post] => WP_Post Object
(
[ID] => 31891
[post_author] => 65
[post_date] => 2022-08-31 16:21:54
[post_date_gmt] => 2022-08-31 14:21:54
[post_content] => With a trademark registration, a trademark owner acquires the exclusive right to use a trademark [word and/or logo] for certain products or services.
The trademark owner can assert the trademark right against anyone who uses the trademark or a sign very similar to the trademark. It should relate to the use of products or services for which the mark is registered. Therefore, much depends on a good description of the products and/or services for which a trademark is registered. This is where our knowledge and experience come into play. We know what's important in a legal dispute, as we also sue for trademark infringement. And this knowledge and experience is also useful during the registration of trademarks.
Where do you want protection?
You only have
protection where you register the trademark.
Benelux
We have a single trademark registration system in the Benelux. With a registration, a trademark owner has protection in all countries of the Benelux. That is in Belgium, Luxembourg and the Netherlands.
European Union
We have a Community trademark within the European Union. EUIPO in Alicante [Spain] handles applications for the Community trademark. With a registration, the trademark owner has protection in all countries of the European Union. This means that if a word or logo is not a valid trademark in one of the European Union countries, the application will be rejected for the entire European Union. For example, if a word in one of the European Union countries describes the products/services. This makes it important to do an extensive trademark research.
International
Trademark registration for different countries can be done through a single agency [WIPO]. Countries such as the USA, China and the EU are members. The application is made to WIPO and then split into trademark applications for the countries selected in the application. For this reason, the choice of countries for which protection is requested depends on the countries where the trademark will be used.
Obligations of the trademark owner
A trademark must be normal used in commerce within five years of the registration. Therefore, a trademark can also be
registered for a country where it can be used in the future. For a Community trademark, it must be used in at least three countries of the European Union within five years.
Why BG.legal?
We specialize in advising and litigation in intellectual property law, including trademark law. We are doing research on the usability of trademarks. We also register, manage and track trademarks. We also assist clients in objection and infringement lawsuits and draft contracts for the transfer of trademarks.
When applying for a trademark, we will prepare the application, search for the same word mark and send you the certificate of the trademark.
Costs
We work with fixed rates to keep costs as clear as possible. The costs depend on the number of fields and classes applied for in a trademark application.
More information?
For more information, please contact one of our IP specialists.
Click
here for the Turkish version.
[post_title] => Why should you register a word or logo as a trademark?
[post_excerpt] =>
[post_status] => publish
[comment_status] => open
[ping_status] => open
[post_password] =>
[post_name] => why-should-you-register-a-word-or-logo-as-a-trademark
[to_ping] =>
[pinged] =>
[post_modified] => 2022-08-31 16:24:17
[post_modified_gmt] => 2022-08-31 14:24:17
[post_content_filtered] =>
[post_parent] => 0
[guid] => https://bg.legal/?p=31891
[menu_order] => 0
[post_type] => post
[post_mime_type] =>
[comment_count] => 0
[filter] => raw
)
[comment_count] => 0
[current_comment] => -1
[found_posts] => 92
[max_num_pages] => 10
[max_num_comment_pages] => 0
[is_single] =>
[is_preview] =>
[is_page] =>
[is_archive] => 1
[is_date] =>
[is_year] =>
[is_month] =>
[is_day] =>
[is_time] =>
[is_author] =>
[is_category] =>
[is_tag] =>
[is_tax] => 1
[is_search] =>
[is_feed] =>
[is_comment_feed] =>
[is_trackback] =>
[is_home] =>
[is_privacy_policy] =>
[is_404] =>
[is_embed] =>
[is_paged] => 1
[is_admin] =>
[is_attachment] =>
[is_singular] =>
[is_robots] =>
[is_favicon] =>
[is_posts_page] =>
[is_post_type_archive] =>
[query_vars_hash:WP_Query:private] => d67b47b381c3538a142868ca96802084
[query_vars_changed:WP_Query:private] => 1
[thumbnails_cached] =>
[allow_query_attachment_by_filename:protected] =>
[stopwords:WP_Query:private] =>
[compat_fields:WP_Query:private] => Array
(
[0] => query_vars_hash
[1] => query_vars_changed
)
[compat_methods:WP_Query:private] => Array
(
[0] => init_query_flags
[1] => parse_tax_query
)
[tribe_is_event] =>
[tribe_is_multi_posttype] =>
[tribe_is_event_category] =>
[tribe_is_event_venue] =>
[tribe_is_event_organizer] =>
[tribe_is_event_query] =>
[tribe_is_past] =>
[tribe_controller] => Tribe\Events\Views\V2\Query\Event_Query_Controller Object
(
[filtering_query:Tribe\Events\Views\V2\Query\Event_Query_Controller:private] => WP_Query Object
*RECURSION*
)
)
With a trademark registration, a trademark owner acquires the exclusive right to use a trademark [word and/or logo] for certain products or services. The trademark owner can assert the trademark...
Read more
Deadly diseases still exist to this day and they need to be addressed. Thus, we have to predict, prevent and respond to the outbreak of deadly viruses like COVID-19. Artificial...
Read more
The European Commission has proposed a legal framework on Artificial Intelligence (‘AI’). This AI Act proposes a risk based approach with clear requirements and obligations regarding specific uses of AI....
Read more
It has become lucrative for businesses to generate revenue through sourcing and purchasing goods elsewhere. However, these businesses must also be aware of the accompanying risks in doing so. If...
Read more
When processing personal data, the controller must adhere at all times to the principle of transparency. In practice, this means that data subjects should be adequately informed about the different...
Read more
Case facts Globus has registered both the word and figurative mark MAXUS in 1996 at the German Patent and Trademark Office for the classes 1 through 9 and 11 through...
Read more
What is data? The value of many companies lies more and more in the large amount of data generated by the company, also known as ‘data’ or ‘big data’. The...
Read more
The European Commission has published a draft AI (Artificial Intelligence) Regulation. The current laws and regulations are inadequate for AI applications. The approach of this draft is to opt for...
Read more
The government is starting to pay more and more attention to the supervision of AI and its use. On our knowledge platform about legal aspects of Artificial Intelligence legalair.nl we...
Read more
We are inclined to think that using the same trade name is not possible. Is organisation A using a trade name? Then organisation B cannot use exactly the same name....
Read more
