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[post_content] => What is slavish imitation?
Does a product, idea or other design not qualify for protection under intellectual property law? Then a appeal for slavish imitation comes into play. Slavish imitation is, as it were, the safety net for all designs that are not protected by any other right. It is a form of tort.
Is it possible to invoke slavish imitation?
The starting point is that slavish imitation is permitted. But this principle is regularly deviated from.
To be able to invoke slavish imitation, you have to prove a number of things. An advantage is that it is not necessary to prove that a product or design has been copied one-on-one. Slavish imitation protects against all designs that are too similar. In concrete terms, you will have to argue that:
The imitated product causes confusion among the public. If a specific example of sown confusion can be presented, it is absolutely helpful. For example, customers confusing the products with each other. This is proof that confusion has already occurred, but a well-founded fear that confusion may occur in the future is also sufficient.- Secondly, it must be substantiated that the imitating party did not do enough to prevent the risk of confusion. This party should have taken measures. For example, by deviating from the original design in certain respects, so that similarity between the products is prevented as much as possible. This concerns the reasonable measures that could have been taken. Measures that, for example, affect the usability of a product do not have to be taken.
When these points are raised, a design is slavishly imitated.
Action
A product is unlawfully imitated. And now? You can take action against this. There are many examples in case law of proceedings on the question of whether products are slavishly imitated. But not everyone is waiting for
legal proceedings.
Therefore, we usually start by writing to the party that slavishly imitates a product. During a consultation between the parties, we can examine whether the imitated product can be adjusted on certain crucial points, for example, to remove the similarity. Only if the consultations seem to have no effect can a procedure be considered.
Branches
Slavish imitation is common in the following industries:
Fashion: jewelry, clothing, shoes and/or accessories;Design: furniture, including protection of a certain style.
Read more about various protection possibilities in the
Fashion & Design branche.
Do you have questions about slavish imitation? Would you like to test whether your product or design is slavishly imitated? Please contact one of our lawyers.
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What are trade secrets?
Trade secrets are the core business of innovative companies. They are internal information that has commercial value. The information is secret and measures have been taken to guarantee its secrecy. In other words, it is know-how that you would rather not have out on the street.
Roadmap for protection
Proper protection of trade secrets can prevent problems. This requires investment at the front end, so that discussions at the back end can be avoided. Are you curious about what you can do yourself? Read our step-by-step plan here so that you can protect your trade secrets yourself.
Collaboration
The protection of trade secrets also comes into play when organisations cooperate.
Good cooperation often goes hand in hand with sharing trade secrets. Sharing secrets is also possible, but we recommend taking additional measures.
Do you prefer personal contact? Call or e-mail one of our lawyers. They are experienced in advising on trade secrets. We look at your NDA, assess what measures can be taken and advise on legal positions. We also regularly assist entrepreneurs in legal proceedings. Particularly when trade secrets have been used or disclosed unlawfully.
Do you have questions about the protection of trade secrets? Please
feel free to contact one of our lawyers.
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What are trade names?
In the digital age, a good trade name is important for distinguishing companies. A creative trade name increases the online recognisability and findability of companies. Because the development of trade names is an expensive process, the need for protection is increasing.
Protection
Trade name law arises when the trade name is actually used in commerce. It arises automatically and there is no obligation to register. The use of the trade name in, for example, e-mail signatures, on a website, social media or on letterhead may be enough. As a holder of a trade name, you can take action against different types of infringements. For example if:
- a competitor uses the same trade name;
- the trade name is mentioned in someone else's domain name;
- the competitor uses a trade name that is not or barely different from your trade name;
- a party tries to benefit from your success;
- the trade name or reputation of the company is damaged.
The basic principle is that an older trade name takes precedence over a new trade name.
Identical trade names
The use of an identical trade name is, in principle, prohibited. However, there are also exceptions to this rule. In this blog we explain when it is allowed to use the same trade name. However, for identical trade names within the hotel industry, please refer to this blog.
Please feel free to contact us.
The lawyers at BG.legal are specialised in trade name and domain name law. They can determine your legal position, answer your questions and assist you in proceedings.
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What are domain names?
In the digital age, a good
domain name is important for distinguishing companies. A creative domain name increases the online recognisability of companies. Because the development of domain names is an expensive process, the need for protection is increasing.
Protection
A legal regulation for the protection of domain names is currently lacking. The domain name right arises through its registration. Thereafter, you as a domain name holder can take action against infringements.
In some cases, it is also possible to demand the transfer of someone else's domain name. This can be useful, for example, if another party tries to ride on your success.
We regularly see that domain names are only registered to be able to 'link through' to another page. Or that the domain name of a competitor differs very slightly from your domain name.
The lawyers of BG.legal often advise on these kinds of legal pitfalls. Preventing the abuse of domain name registration is part of our daily practice. In addition, BG.legal has experience in claiming and defending domain names on the basis of trademark and trade name law.
Who owns a domain name?
In addition, the question often arises: to whom does a domain name belong? Does it belong to the person who registers it? To the person in whose interest he or she acts?
We have answered these questions. Read our informative blog
here. We have also written a
blog about the use of trademarks or tradenames in a domain name.
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Wat is copyright?
Copyright is the right of the "
creator". The right arises automatically. Convenient, as no additional actions are required.
Designers, engineers and other shapers have to deal with copyright on a daily basis. Any product or concept they develop will usually be subject to copyright.
This brings advantages, as the creators have the exclusive right to publish their work. Think, for example, of placing photos on a website. Moreover, for the use of the work (by someone else) the permission of the maker is always needed. Creative designs such as logos and house styles may not be adapted just like that. In practice, a fee is often charged for the use of the works.
The acquisition of copyright also offers opportunities, for example, to enter into cooperation with another organisation in order to create a new, joint work. The distribution of copyrights is an important issue to keep in mind. Will there be a joint copyright? Do the parties retain their own copyright on the input they provide? What fees should to be paid? These are just examples of questions that need to be considered at the front end.
Our lawyers
Jos van der Wijst,
Frédérique Kuiper and
Mustafa Kahya are happy to help you with your copyright plans. They can also help you with industry-specific questions:
Fashion & Design
Fashion and copyright go hand in hand. Without copyright protection, designs can be copied and imitated. Want to protect style, fashion or design? Read
here how this can be done.
Performers
Music, performing arts and works of art are all protected by copyright and neighbouring rights. BG.legal assists artists who have questions about agreements, collaborations or infringements of their work.
Copyright and software
Software protection is a frequent issue in these modern times. Have an application built? Protect the technology!
Portrait rights
The Copyright Act states that someone who is depicted in a photograph, painting, etc. can object to the publication of his portrait. In that case, the image must not have been commissioned by him and he must have a reasonable interest in the publication. This portrait right can be invoked against, for instance, photographs on social media.
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What are Trademarks and designs?
Trademark and design law is part of intellectual property law. However, protection of trademarks and designs does not come about automatically. For this you have to take action. What you need to do exactly is explained below.
Trademarks
Trademark law is concerned with the protection of 'distinguishing marks' for services and goods. Distinctive signs come in all shapes and sizes. Such as logos and words, but also certain colour compositions or packaging. Companies are identified, as it were, by these signs.
Designs
Design law relates to the design of consumer goods. For example, the design of a piece of furniture that is recorded in a drawing or an illustration. When assessing the appearance of the object, the lines, colours, shapes, texture and ornamentation are tested, among other things.
Why registering?
Protection of trademarks and designs only comes about through their registration. Registration takes place at the relevant office. The procedure is quite simple. We can take care of the registration for you. BG.legal regularly registers trademarks and designs within the Benelux, Europe and internationally. We do not charge an hourly rate, but a fixed price. So that you know where you stand in advance.
View our fixed fees for registering trademarks and designs
here.
By
registering a trademark, companies can increase the added value of the trademark. After registration, the trademark is protected and action can be taken against infringements. The same applies to the registration of designs. Is a design new and does it have an individual character? Then registration is possible. After registration of the design the holder of the design has the exclusive right to use it, market it, sell it, etc.
Advertisement
Trademarks also play an important role in the field of advertising. One can think of advertisements on TV, but nowadays it is mainly about online forms of advertising. Such as advertising via Google Ads, affiliate marketing etc. In addition, trademarks and trade names are frequently used. Would you like to know more about advertising law and the rules that apply to the use of (other people's) trademarks? Click
here.
Advice and procedures
Inventing trademarks and designs is often a costly process. As their use increases, they become known to an ever wider audience and their value increases. Subsequently, unpleasant situations may arise in which you are confronted with a sign used by another company that is very similar to your design. We will be pleased to help you with questions of advice and with taking action against infringements.
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[post_content] => Consent is one of the more well-known lawful bases of processing. At first glance, the concept of consent might seem quite self-explanatory: simply ask if the data subject is willing to agree with the processing of its
personal data. However, in practice, obtaining valid consent under the General Data Protection Regulation (GDPR) might prove to be quite challenging. That is why in this blog, we shall take a closer look at some of the requirements pertaining to the use of consent as a lawful basis of processing.
Definition
Article 4 paragraph 11 of the GDPR defines consent as: “
any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.”
The definition of consent can be divided into four prerequisites:
I. Freely given
II. Specific
III. Informed
IV. Unambiguous indication of wishes
Each of these prerequisites shall be further explained below.
I. Freely given
Consent is freely given, if the data subject has a genuine choice and/or control over the refusal/withdrawal of its consent. This is not always a given: certain circumstances could influence the ability of the data subject to freely give his or her consent. Consideration should therefore be given to the following preconditions:
Imbalance of power: An imbalance of power exists whenever it is unlikely that the data subject is able to refuse his or her consent without the fear of repercussions. Imbalances of power are likely to occur if the controller is either a public authority or an employer, due to the fact that their relationship with the data subject is characterised by a high degree of dependency. Under those circumstances it is unlikely that the controller will be able to rely on the consent of the data subject as a lawful basis of processing.Conditionality: Consent is presumed to be not freely given, if consent is “bundled up” with a number of terms and conditions that are not necessary for the performance of the contract. In order to avoid this point of concern, the controller could offer an equivalent of the service that does not involve permitting the use of data for additional purposes.Granularity: If data is being processed for more than one purpose, the data subject should be able to choose which purpose they are willing to accept. In other words, rather than having to consent to multiple purposes at once, the data subject should be able to give separate consent for each specific purpose.Detriment: The data subject should be able to refuse or withdraw its consent without any repercussions. Moreover, the controller should be able to demonstrate that it is possible to refuse or withdraw consent without detriment.
II. Specific
Consent must be given in relation to one or more specific purpose. The aim of this prerequisite is to ensure that the data subject is in control: it shall be his/her consent that determines the purpose of the processing. If the controller wishes to use the data for a different purpose, it should either ask for additional consent or find another lawful basis that might better suit the situation.
III. Informed
For consent to be informed, the data subject should have access to certain pieces of information that would enable him or her to make an informed decision. To that end, the
Article 29 Data Protection Working Party (WP29) is of the opinion that the controller should
at least provide the following information to the data subject:
[1]
- the controller’s identity;
- the purposes of the processing activities for which consent is requested;
- the types of data that will be processed;
- the existence of the right to withdraw consent;
- whether or not data is used for automated (individual) decision-making, including profiling; and
- the possible risks of data transfer operations, mainly due to the absence of an adequacy decision and/or proper safeguards that might ensure an appropriate level of security.
IV. Unambiguous indication of wishes
Consent requires a statement from the data subject or a clear affirmative act, which means it should be given through an active motion or declaration. In addition, the act of giving consent should be distinguishable from other actions. Merely continuing the use of a product and/or service is insufficient to extrapolate the consent of the data subject.
Things to keep in mind
There is more to consent than might initially meet the eye. If consent is used as (the sole) lawful basis of processing, we recommend evaluating the used consent forms, in order to ascertain whether or not they are compliant with the aforementioned criteria.
If you have any questions about obtaining valid consent under the
GDPR, please do not hesitate to contact us.
[1] WP29, Guidelines on consent under Regulation 2016/679 (WP259), 28
th of November 2017, par. 3.3.1.
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What is intellectual property law?
Intellectual property is an umbrella term for different types of rights that protect creative works. By intellectual property rights we mean rights such as trademarks, design rights, copyright, patents and database rights. These rights protect the design of products, trade names, but also logos or the design of websites. Intellectual property law offers many forms of protection. They have one thing in common: all these rights are protected by law. Knowledge or know-how is not an official intellectual property right, although it can be a trade secret. Trade secrets are also protected by law. This is important if you intend to cooperate.
Operating
Intellectual property rights ('IP') offer opportunities. Opportunities to protect and commercialize know-how and other results of creative efforts. IP gives a monopoly through which the IP holder has exclusive control over the exploitation of the IP.
Our specialists can help you with various questions. For example, they can investigate whether an IP has arisen and how it can be protected. We also take care of the registration of trademarks and designs. We charge a fixed fee per registration. Click
here for the price list for trademark registrations. Naturally, we can also help if a party infringes your IP.
Which protection options are available?
Within intellectual property law, we distinguish between the following rights. Each right offers its own means of protection:
Copyright
We also call copyright the 'right of the author'. Read
here about the advantages of copyright.
Trademarks & Designs
The protection of trademarks and designs does not arise automatically. Read about the registration procedure
here.
Domain Names
Get the most out of your domain name. The more creative, the more protection. Read
here about the transfer of domain names.
Trade names
You enter the market with your trade name. Customers will recognise you by your trade name. Is a competitor infringing on your trade name? Read
here about what you can do about it.
Trade secrets
The protection of trade secrets is very important. Read
here about protecting and sharing trade secrets.
Slavish imitation
Does your work not qualify for any of the above protection? Then you can always rely on slavish imitation. Read
here how this works.
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Software development is a complicated process with many hurdles along the way. That is why virtually every software user will have to deal with a
bug or defect at some point. Usually, the flaw can be fixed with a simple update. If the software developer is no longer contractually obliged to release updates, it remains to be seen whether they will voluntarily solve the problem. Under certain – strict – conditions, end users can then take matters into their own hands and
decompile the software. This blog takes a closer look at the legal aspects of decompilation, based on the recent judgment of the Court of Justice of the European Union (CJEU).
What is decompilation?
Software is initially written in
source code: the programming language that can be read by humans. However, a computer cannot understand these instructions. That is why the source code must first be transcribed into a functional format that the computer can read: object code. This is done by means of a specific program called a compiler. The process of converting source code to object code is known as compilation.
With decompilation, the opposite happens. By using a decompiler, the source code is reconstructed from the
target code. This does not result in the original source code, but in a 'quasi source code' that is very similar to it. The end user can use this quasi source code to make a version of the software in which the errors have been corrected.
However, the option to decompile
software does not offer end users carte blanche: it remains a duplication of the software (in modified form) that usually requires permission from the copyright owner. The conditions under which decompiling is permitted are set out by the CJEU in Top Systems v. Belgian State, which will be discussed below.
[1]
The preceding events
Top System is a software development company. It has developed several software applications for
Selor, an agency that takes care of the selection and recruitment of employees for various Belgian government entities. The software applications made use of functionalities that were derived from the framework work that was developed by
Top System. This framework later turned out to be the cause of several operational problems.
Selor and Top System were unable to reach an agreement on how to resolve these complications. Eventually, Selor took matters into their own hands and decompiled the target code, after which Selor used the quasi source code to correct most of the errors. In doing so, Selor had to disable a number of functionalities from the other software applications. As the copyright owner, Top System believes that Selor has acted in violation of its exclusive right to reproduce the software.
CJEU: Decompilation is allowed for necessary improvements
The CJEU states that according to Directive 2009/24/EC (hereafter: “
the Software Directive”), reproduction and translation of any code form (i.e. decompilation) is an exclusive right of the copyright owner.
[1] The lawful purchaser may only decompile the software without prior authorization from the copyright owner, if this is necessary to run the software in accordance with its intended purpose or to
correct any errors that prevent said use.
Correct errors
The lawful purchaser is only allowed to correct errors that impair the ability to use the software in accordance with its intended purpose. Corrections may also consist of disabling certain functionalities, if this allows the program to be reused for its intended purpose.
The CJEU also explicitly distinguishes between decompiling for the purpose of correcting errors and decompiling for the purpose of compatibility. The latter is only allowed if compatibility with another independently created program cannot be achieved in any other way.
Necessary
Decompilation as measure also needs to be absolutely necessary in order to be able to use the program for its intended purpose. The lawful purchaser is therefore not allowed to use the
quasi source code for any other purposes. Decompilation is also unnecessary if and when the original source code is legally or contractually accessible to the lawful purchaser.
On the basis of Article 5, paragraph 1 of the
Software Directive, both parties can make specific arrangements regarding the way in which errors should be corrected. One could think of an arrangement whereby the software developer maintains and corrects the software for a certain period of time. However, it is not permitted to completely exclude the ability to correct errors by contract.
What does this mean in practice?
The lawful purchaser may decompile a computer program - without prior
authorization from the copyright owner - if this is necessary to run the software in accordance with its intended purpose or to correct errors that affect said use. In doing so, the following should be taken into account:
- Identify if an error is preventing you from using a software application for its intended purpose.
- Check whether decompiling the software is possible and necessary. Take a closer look at the contractual obligations of both parties and the legal bases on which the lawful purchaser can rely: perhaps the original source code is legally or contractually accessible.
- When correcting errors it is also allowed to disable certain functions, if those functionalities prevent you from using the software for its intended purpose.
Here you can find the dutch version.
[1] CJEU 6th of October 2021, ECLI:EU:C:2021:811 (
Top Systems/Belgian State).
[2] Article 4 sub a and b jo. 6 paragraph 1 Software Directive.
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[post_content] => Nowadays it is possible to do everything in the
cloud, you just need to have a computer with an internet connection. All you have to do is log in and all the heavy computing is done in the cloud. Once you enter the world of cloud services you will come across a number of different types of services with catchy names like
IaaS,
PaaS and
SaaS. These types are like different animals and they all have their own advantages and disadvantages. In this article I will discuss the differences between on-premise, IaaS, PaaS and SaaS and then explain the legal implications.
A general advantage of
as a Service (aaS) products is that you don't have to buy and manage the servers yourself. This allows you to install more capacity much faster and you don't need to reserve extra physical space to put servers down. On the other hand, for all aaS services you are dependent on both the provider of the service and a stable internet connection. This may not be a problem for some businesses but can be unacceptable for others.
Software as a Service (SaaS)
The first type is the SaaS. A SaaS is like a goldfish,
as long as you keep paying, the service keeps working. You only have to do the minimum amount of maintenance and you don't have to fix most problems yourself. An example of a SaaS is Google Drive. You can store your files in it, but only as Google sees fit.
The advantage of a SaaS solution is that as a user you are not responsible for keeping the product running. The provider takes care of the security, the servers and they take care of the maintenance. This makes a SaaS solution the most accessible type of aaS of the three.
The advantage of the SaaS can also be a weakness. As a user, you have (almost) no ability to add new features and also little control over how the service works behind the scenes. For example, as a user it is not possible to force Google to store your files within the EU.
Platform as a Service (PaaS)
A PaaS is more open than a SaaS. You can compare a PaaS to a dog,
you have work to do on it. With a PaaS you get space on which you can run other programs. An example of this is a remote desktop. You can run all sorts of programs on it, but the provider determines which operating system is installed and when updates are performed.
With a PaaS, you as a user have more control. You can install and develop programs yourself and add new functionality as a result. The provider still takes care of the fundamental security of the servers and the operating system and also ensures that the necessary updates are carried out.
The disadvantage of the PaaS is that as a user you get more responsibility. You have to be sure that all the programs you install are secure and that you don't make mistakes when developing new programs.
Infrastructure as a Service (IaaS)
An IaaS offers the most freedom you can have without owning servers. It's like having a litter of puppies,
you get to and have to raise them yourself. You can choose your own operating system, how you set everything up, what programs you use and what happens. Amazon Web Services (AWS) is an example of this.
The advantage of an IaaS is that you have the benefits of controlling servers without having to buy or maintain them yourself. You get an empty shell that you can set up yourself and if you need to, you can make 100 copies of it in minutes.
The disadvantage of an IaaS is that it requires more knowledge and skill. This is because you are responsible for everything except the physical server and the internet connection. So for this you need to know how to keep your operating system secure, how to make sure all the programs are set up and more.
On-premise
If you want to take care of everything yourself then you can purchase the
software and run it on your own servers. This is a household with three children, but without a school or day-care. You have to do everything yourself and are responsible for everything. On the other hand, you are in control and therefore have the freedom to set everything up the way you want. This is what Google, Amazon and Microsoft do. They only use their own servers.
Comparison
The table at the top of this article provides an overview of which party is responsible for what. Basically, as a customer, you should be able to expect that the part which the service provider takes care of will work properly. If not, then your service provider should be liable for the downtime within the contractual limits. For example,
AWS is supposed to be available 24 hours a day.
Amazon guarantees that AWS is available 99.99% of the time. That means AWS can have 0,144 minutes of downtime every day. If the downtime is more than this, Amazon will give clients back some of their spent credits.
The two big choices to make when deciding on which aaS is for you, are the amount of control you want as a user and the amount of responsibility.
The more control you have (or want) over the service, the better you can control what happens. This can be important in relation to the GDPR and also if you perform services for others and have a duty of confidentiality. More control also means that you have more options and can therefore develop your own services. You will not be able to sell a SaaS you buy as a SaaS to others, but you can build your own SaaS on a PaaS. With an on-premise solution you have all the reins in your own hands.
If you accept more responsibility, with an IaaS and a PaaS or on-premise hosting, you can also make more mistakes. You cannot hold the provider liable for these mistakes, because their responsibility decreases. If
data is deleted by a program you installed, you will have to solve that yourself and your provider will not be able to do much about it. If you host on-premise, then you also have all the responsibility for all physical problems like internet connection and maintenance of servers.
In terms of data protection, the type of aaS makes a difference when assessing whether the service provider is a processor or a data controller. The person who determines how personal data is processed is almost always one of the data controllers, so with SaaS it may well be that the service provider and the customer are joint data controllers. In all other solutions, the service provider has no say in how personal data is processed and so here the customer will be the data controller and the service provider a processor.
Conclusion
The different aaS forms each have their advantages and disadvantages. Also legally. How much responsibility and risk are you willing to accept? Does this fit with the corporate/professional liability insurance you have?
For
questions on this subject, please contact Jos van der Wijst (wijst@bg.legal).
Here you can find the dutch version.
Robin Verhoef and Jos van der Wijst.
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What is slavish imitation?
Does a product, idea or other design not qualify for protection under intellectual property law? Then a appeal for
slavish imitation comes into play. Slavish imitation is, as it were, the safety net for all designs that are not protected by any other right. It is a form of tort.
Is it possible to invoke slavish imitation?
The starting point is that slavish imitation is permitted. But this principle is regularly deviated from.
To be able to invoke slavish imitation, you have to prove a number of things. An advantage is that it is not necessary to prove that a product or design has been copied one-on-one. Slavish imitation protects against all designs that are too similar. In concrete terms, you will have to argue that:
The imitated product causes confusion among the public. If a specific example of sown confusion can be presented, it is absolutely helpful. For example, customers confusing the products with each other. This is proof that confusion has already occurred, but a well-founded fear that confusion may occur in the future is also sufficient.- Secondly, it must be substantiated that the imitating party did not do enough to prevent the risk of confusion. This party should have taken measures. For example, by deviating from the original design in certain respects, so that similarity between the products is prevented as much as possible. This concerns the reasonable measures that could have been taken. Measures that, for example, affect the usability of a product do not have to be taken.
When these points are raised, a design is slavishly imitated.
Action
A product is unlawfully imitated. And now? You can take action against this. There are many examples in case law of proceedings on the question of whether products are slavishly imitated. But not everyone is waiting for
legal proceedings.
Therefore, we usually start by writing to the party that slavishly imitates a product. During a consultation between the parties, we can examine whether the imitated product can be adjusted on certain crucial points, for example, to remove the similarity. Only if the consultations seem to have no effect can a procedure be considered.
Branches
Slavish imitation is common in the following industries:
Fashion: jewelry, clothing, shoes and/or accessories;Design: furniture, including protection of a certain style.
Read more about various protection possibilities in the
Fashion & Design branche.
Do you have questions about slavish imitation? Would you like to test whether your product or design is slavishly imitated? Please contact one of our lawyers.
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