28
April
2020
Pacte Law: The trademark opposition procedure new generation
Author:
teamtaomanews
We have been waiting for it for several years and France has finally transposed the European Directive 2015/2436 of 16 December 2015, approximating the laws of the Member States on trademarks by the Pacte Law.
One of the major changes in French law concerns the reform of the opposition procedure before the INPI against a trademark application infringing the prior rights of a third party. This new-generation opposition applies only to French trademarks, or international trademarks designating France, filed on or after December 11, 2019. For trademarks filed before this date, the old procedure remains applicable.
We therefore offer you a comparison between the new and the old opposition proceedings.
Grounds for opposition
The old opposition was characterized by the obligation to invoke only one prior right per procedure. Thus, if a holder wished to base his opposition on two trademarks, he had no choice but to file two oppositions.
The new procedure makes it possible to invoke several earlier rights in the same opposition. Similarly, the earlier rights that can be used to support the opposition procedure have been extended.
The official tax has changed and is now of €400 for the fist prior right invoked and of €150 for any additional rights invoked.
Course of the procedure
If the deadline to file an opposition is still of two months from the publication of the contested trademark, it is now possible to file a formal opposition. The brief setting out the arguments in support of the action must be submitted within 1 month of the expiry of the opposition period.
The adversarial principle has also been strengthened since the parties can exchange several sets of written submissions in order to make their case. In return, the opposition procedure is lengthened and can last up to 10 months before the final decision is taken, as opposed to a maximum of 6 months under the old procedure.
As part of his defense, the applicant of the contested mark may require the opponent to provide proof of genuine use of the earlier marks invoked which have been registered for more than 5 years. Such a possibility was already available in the old opposition proceedings.
However, the INPI now has the power to exercise a thorough control of the evidence to be provided by the opponent. It will therefore be necessary for the latter to be in a position, prior to the initiation of opposition proceedings on the basis of a trademark registered for more than 5 years, to provide proof of genuine use of the trademark for all the goods and/or services invoked in the context of the proceedings.
The new generation opposition procedure is therefore a major step forward for holders of prior rights by providing them with a broader basis for action and a strengthened adversarial principle. The other side of the coin is the need to demonstrate the genuine use of its trademarks registered for more than 5 years, at the request of the defendant, for all the goods and/or services invoked in support of the opposition.
Jean-Charles Nicollet
European Trademark and Design Attorney
Head of Legal Department
14
April
2020
A new chance for the European Union trademark application “FACK JU GÖTHE”
The word mark “FACK JU GÖTHE” can be registered as a European Union trademark, decided the Court of Justice of the European Union in a decision dated February 27, 2020. This decision overrules the European Union intellectual property office (EUIPO) decision, confirmed by the General Court, that this applied-for mark was contrary to the Article 7, (1), (f), of Regulation No.207/2009 [1], namely, contrary to principles of morality which.
As we have seen in our previous news concerning the opinion of the Advocate General Bobek (read our TAoMA News of July 18, 2019 in French), the company Constantin Film Produktion Gmbh, filed in 2015 the European Union Trademark Application “FACK JU GÖTHE” before the EUIPO. If this sign is intended to designate various goods or services of daily life, it is also the title of a German comedy movie which enjoyed great success in German-speaking countries and had several sequels.
The EUIPO, approved by the General Court, refused registration of this word sign on the ground that the first words “FACK JU” were phonetically identical to the English insult “FUCK YOU” and that the sign taken as a whole was therefore an expression of bad taste, offensive and vulgar, by which the writer Johann Wolfgang Goethe was posthumously insulted [2], and this, notwithstanding the applicant’s arguments as to the context surrounding the release of the film bearing the same name.
Constantin Film Produktion GmbH then brought an appeal before the Court of Justice against the latter decision, alleging, inter alia, errors in the interpretation and application of Article 7(1)(f) of Regulation No 207/2009, which excludes from registration trademarks “contrary to public policy or to accepted principles of morality”.
Following the reasoning of Advocate General Bobek, the Court, in its decision of 27 February 2020, annuls the decisions of the General Court and the EUIPO.
According to the Court, the EUIPO and the General Court disregarded the standards required by Article 7(1)(f) of Regulation No 207/2009, in the light of which it is necessary to carry out an analysis of all the elements specific to the case in order to determine precisely how the relevant public would perceive the sign in question.
Indeed, the EUIPO, as well as the General Court, relied solely on an abstract assessment of that mark and of the English expression to which the first part is assimilated. But the Court considers that they should have examined more carefully the social context and the factual elements invoked by the applicant and should have explained more conclusively the reasons why these elements had been left out of its analysis.
Among these factual elements, there was more than convincing evidence: in particular, the great success of the comedy movie of the same name and the fact that its title does not appear to have caused controversy among the German-speaking public. In addition, the young audience had been allowed to see the film when it was released and was the primary target. Finally, the Goethe Institute, which is a reference in the promotion of the German language on a national and worldwide level, used it for educational purposes.
Furthermore, the Court underlines the fact that the perception of the English expression “FUCK YOU” by the German-speaking public is not necessarily the same as its perception by the English-speaking public. While it is true that this expression is well known to the non-English-speaking public, its semantic content may be slightly different or even diminished in a foreign language. It is especially true in the present case because the first part of the trademark application at issue does not consist of the English expression as such, but of its phonetic transcription in German, accompanied by the element “Göthe”.
In the light of all these factors, the Court considers that the EUIPO and the General Court misinterpreted and misapplied Article 7(1)(f) of Regulation No. 207/2009 and, accordingly, cancels the corresponding decisions.
Finally, as we indicated in our previous TAoMA News, Constantin Film Produktion GmbH also invoked freedom of expression as an element to be taken into account in the assessment of Article 7(1)(f) of Regulation No. 207/2009. While the Court is less affirmative than its U.S. counterpart (the U.S. Supreme Court has recently ruled that the US Trademark Act on immoral, misleading or scandalous trademark is contrary to the freedom of expression guaranteed by the US Constitution, see our TAoMA News of July 4, 2019 in French), it acknowledges, for the first time to our knowledge, that freedom of expression must be taken into account when applying this provision of trademark law in order to ensure respect for fundamental rights and freedoms, in particular in accordance with Article 11 of the Charter of Fundamental Rights of the European Union [3].
The future of the trademark “FACK JU GÖTHE” is now in the hands of the EUIPO which will, for the second time, have to proceed with its examination. Full of learnings, the decision of the Court should probably influence the latter and lead to the registration as a trademark.
Baptiste Kuentzmann
Lawyer
Read the decision on CURIA.
[1] Article 7 (1)(f) Regulation (EU) 207/2009: “1. The following shall not be registered: (…) f) trademarks which are contrary to public policy or to accepted principles of morality”. Applicable provision in this case, now replaced by Regulation (EU) 2017/1001 ;
[2] EGC, January 24, 2018, T-69/17, Constantin Film Produktion/EUIPO (Fack Ju Göthe) ; Fifth Board of Appeal of the EUIPO, December 1, 2016, R 2205/2015-5, (Fack Ju Göthe) ;
[3] Article 11 of the Charter of Fundamental Rights of the European Union: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
07
April
2020
Impact of revocation for non-use on an infringement action based on the revoked trademark
Author:
teamtaomanews
The complex trademark SAINT GERMAIN was registered in France on May 12, 2006 by the company AR for alcoholic beverages, ciders, digestives, wines and spirits. For its part, the company COOPER International Spirits distributed, under the name “St-Germain”, a liqueur manufactured by the companies St Dalfour and Etablissements Gabriel Boudier.
On June 8, 2012, AR sued these three companies for trademark infringement before the Paris court of first instance. However, in parallel proceedings, the Nanterre court of first instance ruled that AR’s rights to the complex SAINT GERMAIN trademark would be revoked for non-use as of May 13, 2011, first day following the grace period. The owner of the revoked registration nevertheless maintained its infringement action targeting now acts committed during the period prior to revocation, i.e., between June 8, 2009 and May 13, 2011, a period during which the mark was not yet subject to prove use.
In 2015, all its claims were dismissed by the Paris court of first instance; the judgment was upheld by the Paris Court of Appeal, on September 13, 2016. The Court held that AR could not claim infringement of the SAINT GERMAIN trademark by an identical sign in competition with it, while it did not present any probative evidence of the trademark’s genuine use. The judges therefore seem to have subordinated the potential conviction for infringement to the proof, missing here, that its owner was exploiting it, even though the five-year period for starting the use of the trademark was still running.
The French supreme court, before which a writ of certiorari was filed, decided to stay proceedings and to refer the matter to the Court of Justice of the European Union (CJEU) for a preliminary ruling. In essence, the question referred to the CJEU was to determine whether the owner of a trademark which has been revoked due to a lack of genuine use, nevertheless retains the right to claim compensation for damages suffered as a result of the use by a third party – prior to the effective date of revocation – of a similar sign which creates a likelihood of confusion with its trademark.
Possibility of compensation for damages prior to the effective date of revocation for non-use
The Court points out first of all that, according to its own case-law, the owner of a trademark which has not yet been put to genuine use – that is to say, before the end of the five-year period following its registration – may very well bring an infringement action on the basis of the goods and services designated, without having to prove that it is using its trademark (CJEU, 21 December 2016, Länsförsäkringar, C-654/15).
However, the situation is different in the present case. The difficulty lies precisely in the scope of the owner’s rights on the trademark at the end of the period of grace, even though the revocation has already been ordered. In a nutshell, can such a revocation affect the owner’s ability to claim for damages, after the expiration of the period of grace, for infringements of its trademark during that period?
The CJEU gives a positive response, holding that the Member States have“the option of allowing the proprietor of a trade mark whose rights in that mark have been revoked on expiry of the five-year period from its registration because he or she failed to make genuine use of the mark in the Member State concerned in connection with the goods or services for which it was registered to retain the right to claim compensation for the injury sustained as a result of the use by a third party, before the date on which the revocation took effect, of a similar sign in connection with identical or similar goods or services that is liable to be confused with his or her trade mark”.
Indeed, it recalls that Directive 2008/95 left it to the Member States to determine the extent of the effects of the revocation of a trademark and that the French lawmaker has chosen to make the revocation effective as from the expiration of the grace period and not earlier. France has therefore not chosen to allow the alleged infringer to raise the objection of lack of use during the grace period to exempt itself from liability for acts of infringement.
Thus, the owner of a mark which has been revoked for lack of genuine use retains the right to claim compensation for the damages suffered as a result of the use, by a third party, prior to the effective date of revocation, of a similar sign creating a confusion with its mark.
Considering the lack of genuine use during the grace period in the calculation of the damages
The CJEU then specifies the scope of its own decision, stating that the lack of genuine use during the grace period is still an “an important factor to be taken into account in determining the existence and, as the case may be, the extent of the injury sustained by the proprietor and, accordingly, the amount of damages that he or she might claim”.
Thus, the prejudice suffered by the owner of a trademark that does not use it is restricted to the infringement to the right of ownership and excludes compensation for loss of earnings and for unfair profits. Moral damages are equally relative.
Taking into account the lack of use takes its last ammunition from the owner of a revoked trademark. If French law allows it to assert its trademark for acts anterior to the effective date of revocation, it would indeed be inappropriate for the owner to be able to claim substantial damages. This would indeed amount to the legitimization of the practice of “trademark trolls“, those trademark owners that do not exploit their portfolios and use them only to extort money from third parties wishing to use them, through licensing agreements or infringement actions.
The clarification of the EUCJ tempers its answer to the preliminary ruling request and allows to sanction such practices: the owner of a revoked trademark may claim compensation for acts infringing its trademark before the date on which the revocation took effect but, if it did not exploit it, its compensation will be limited.
Synthia TIENTCHEU TCHEUKO
Trainee Attorney
Jérémie LEROY-RINGUET
Attorney-at-law
Reference and date: Court of Justice of the European Union, March 26, 2020, C‑622/18
Read the decision on Curia
13
February
2020
ECJ’s « Sky » decision: a whistle in the wind?
Author:
teamtaomanews
Failing to force holders to restrict the goods/products designated by their trademarks, is the ECJ whistling in the wind?
The British satellite and cable television operator Sky, who holds several eponymous trademarks, took legal action, in the United Kingdom, for infringement of those trademarks against the Cloud service provider SkyKick, who had registered the trademark “Skykick” and variations thereof. The startup counterclaimed that the registration of the trademarks relied on by Sky was wholly or partially invalid on the grounds that (i) the lists of goods and services in respect of which the trademarks were registered lacked clarity and precision and (ii) the applications for registration had been filed in bad faith. Indeed, the trademarks had been filed to protect “software”, “communication systems” and “television” services, when in reality only one activity was considered: the sale of a satellite pay-TV package.
From a strategic point of view, the stakes of this case are essential since it deals with a major issue in trademark legislation. It is indeed important, when applying for a trademark, to have a forward-looking vision and to consider whether new products/services could be marketed under this sign. However, this logic must not lead to the monopolization of signs for a very broad list of goods and services when their owners have no intention of using the aforementioned signs for all of them.
The High Court of Justice (England and Wales), before which the proceedings were brought, decided to stay the proceedings and to refer a number of questions to the European Court of Justice (ECJ) for a preliminary ruling.
Lack of clarity and precision of goods and services for which the trademark is registered: an absolute ground for invalidity?
As a reminder, in 2012[1], the ECJ delivered a resounding judgment[1] in which it ruled that an applicant for a trademark must designate the goods and services for which protection is sought with sufficient clarity and precision, failing which the application must be dismissed.
SkyKick attempted to extend this logic to registered trademarks, but the Court held that a trademark of the European Union or a national trademark “cannot be declared wholly or partially invalid on the ground that terms used to designate the goods and services in respect of which that trade mark was registered lack clarity and precision“, since this requirement is not part of the exhaustive list of absolute grounds for invalidity provided for in the texts.
Overly broad range of good and services at the time of application: ground for invalidity based on bad faith?
While a trademark may be declared invalid if the applicant was acting in bad faith when submitting the application, this notion is not defined by the texts.
The European judges had already had the occasion to offer some possible interpretations, holding that bad faith is established when it is apparent from relevant and concordant indicia that the proprietor of a trademark has filed the application for registration not with the aim of engaging fairly in competition, but with the intention of undermining , in a manner inconsistent with honest practices, the interests of third parties, or with the intention of obtaining, without even targeting a specific third party in particular, an exclusive right for purposes other than those falling within the functions of a trademark, in particular the essential function of indication of origin[2] (see our TAoMA News of November 4, 2019).
With regard, more specifically, to the registration of a trademark without any intention of using it for the goods and services covered by the registration, the ECJ considered that it is likely to constitute an act of bad faith, which may affect all of the goods and services covered by the registration or only some of them. However, such bad faith can only be established if there are objective indications that the applicant intended to harm the interests of third parties in a manner contrary to honest practices or to obtain an exclusive right for purposes other than those falling within the functions of a trademark at the time of filing.
Finally, the ECJ declares that EU law does not preclude a provision of national law from requiring an applicant for registration of a trademark to state that this trademark is used in connection with the registered goods and services, or that he has a bona fide intention to do so, n so far as the infringement of such an obligation does not constitute, in itself, a ground for invalidity of a trade mark already registered.
Although this decision is a first step towards cleaning up the registers of European offices, which are cluttered with unused trademarks, it does not mark the 180° shift that some had expected and endorses a kind of status quo of the current trademark system under EU law, leaving a heavy burden on third parties to challenge the good faith of an owner.
If the recent Trademark Package – and its implementation into French law – does not directly address this issue, the single fee for trademark registration (the cost of which did not vary between one and three classes) it introduced could be an incentive for applicants to think twice before registering their trademarks for too many goods and services.
Date and reference: European Court of justice, January 29th 2020, decision C‑371/18
Read the decision on Curia
Synthia TIENTCHEU TCHEUKO
Trainee-Lawyer
Anita DELAAGE
Lawyer
[1] ECJ, june 19th 2012, C-307/10 « Chartered Institute of Patent Attorneys » known as IP Translator decision
[2] ECJ, september 12th 2019, C-104/18 « Koton Mağazacilik Tekstil Sanayi ve Ticaret/EUIPO »
04
November
2019
EU Court of Justice “cottoned” on to trademarks and bad faith
Author:
teamtaomanews
An applicant, holder of earlier semi-figurative trademarks KOTON designating the European Union territory, filed an opposition before the EUIPO against the application for registration of the trademark STYLO & KOTON filed-for in classes 25,35 and 39. As for the earlier trademarks, the term KOTON included a cotton flower which both vowels were stylized.
The opposition was successful only in classes 25 and 35 which allowed the registration of the STYLO & KOTON trademark for the services of the class 39.
As a consequence, the applicant filed a cancellation action against the trademark for the services of the class 39 but also for the goods and services of the classes 25 and 35 on the basis of a filing in bad faith, according to Article 52(1)(b) of the European regulation No.207/2009 that was applicable at the time when the application was filed.
The cancellation division and then the EUIPO board of appeal having rejected the cancellation action, the applicant appealed to the General Court of the European Union which also reject the argument of a filing in bad faith.
The European regulation n°207/2009 of 26 February 2009 does not offer a definition of “bad faith” but strictly refers to a filing made by an applicant “of bad faith” (EUTMR, art.59(1)(b)).
The Court of Justice of the European Union (“CJEU”) has tried to define it, in particular in the Chocoladefabriken Lindt & Spüngli judgment of 11 June 2009 (ECJ, 11 June 2009, C-529/07, pt. 53) stating that the bad faith of the applicant must be assessed globally taking into account all the factors relevant to the circumstances of the case and existing at the time of filing, and in particular:
the fact that the applicant knows or must know that a third party uses, in at least one Member State, an identical or similar sign for an identical or similar product or service which creates a risk of confusion with the applied-for sign;
the intention of the applicant to prevent that third party from continuing to use such a sign;
the degree of legal protection enjoyed by the sign of the third party and the applied-for sign.
According to the General Court, the judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli does not mean that the existence of bad faith can only be found in the hypothesis, which the Court was then questioned on, where there is use on the internal market of an identical or similar sign for identical or similar goods which are confusing with the applied-for sign. This is only a relevant factor among others to be considered (points 51-55).
By following this approach, the General Court refrained from taking into consideration, in its overall assessment, all the relevant factual circumstances as they arose at the time the application was filed. This, it should have been taken into account that the trademark owner had requested the registration of a sign bearing the stylized word ‘KOTON’ as an EU trademark not only for services in class 39, but also for goods and services in classes 25 and 35 which corresponded to those for which the applicant had registered trademarks bearing that stylized word (points. 59-60).
Moreover, the General Court raised, only for the sake of completeness, the fact that there had been commercial relations between the trademark owner and the applicant and that they had been broken by the applicant; it also refrained from examining whether the application for a trademark containing the stylized word “KOTON” for goods and services in classes 25, 35 and 39 presented a commercial logic with regard to the activities of the trademark owner (point 62).
As the EUCJ decided to cancel the judgment of the General Court and the decision of the Board of Appeal, it is for the EUIPO board having jurisdiction to take a new decision on the basis of an overall assessment which takes into account the application for the contested trademark as filed for goods and services not only in class 39, but also in classes 25 and 35.
Alexis Valot
Lawyer
Anne Messas
Attorney at law, partner
Read the decision here
20
June
2019
The CNIL confirms its power to impose sanctions without formal notice: SERGIC sentenced to 400,000 euros for serious breach of their security obligation
At the end of April, the Conseil d’État (the French administrative supreme court) confirmed the CNIL’s (the French data protection control authority) ability to sanction violations of personal data security rules without necessarily resorting to a prior formal notice intended to leave the offender the possibility of correcting his behaviour (note: link to our news on the OPTICAL CENTER case).
In its decision of 28 May 2019, the supervisory authority confirmed its willingness to exercise this power.
The targeted company is SERGIC, a company specialising in the real estate sector that had been the subject of a complaint by a user, surprised that the simple modification of a number in the URL address of the company’s website allows it to access the files and supporting documents of candidates for rental.
An audit in September 2018 revealed a flagrant breach of data security in terms of the volume of data involved and the duration of the breach. CNIL agents were able to download more than 9,000 documents including “copies of identity cards, health cards, tax notices, death certificates, marriage certificates, social security affiliation certificates, certificates issued by the family allowance fund, disability pension certificates, divorce judgments, account statements, bank statements and rent receipts”.
In addition, despite a previous report, the lack of data protection persisted for a period of more than 6 months before measures were taken to put an end to it.
Finally, the violation is aggravated by the fact that, according to the company’s admission, the data of rental applicants are not deleted once their file has been closed and the application accepted or rejected.
In its decision of May 28, the CNIL therefore found a breach of Article 32(1) of the GDPR, concerning reasonable data protection measures. She insists on the duration of the breach, the large number and the sensitive and intimate nature of the data left unprotected.
In addition, the CNIL finds a violation of the provisions of Article 5-1-e) of the Regulation on the proportionality of data retention periods; for the supervisory authority, the company in question has aggravated its case by keeping well beyond the original purpose the data relating to candidates who did not access the lease, which should have been deleted as soon as their file was closed.
In view of the seriousness of these breaches and the company’s lack of diligence in their management, the CNIL sentences the company to pay a fine of 400,000 euros, and to publish the said sanction, without prior formal notice, and therefore without allowing SERGIC to correct the errors before deciding on the sanction.
On this subject, the CNIL points out in its decision that a formal notice is in no way made mandatory by the provisions of the 1978 Data Protection Act, which governs its action; this decision is thus to be placed in the continuity of the OPTICAL CENTER case.
The CNIL’s message is clear: no catching up for serious violations, the vigilance of data controllers is essential at the highest level.
Read the decision (in French)
14
June
2019
French Supervisory authority sanctions: no obligation of prior formal notice confirmed by the Administrative Supreme Court
In a decision of April 17 2019, the French supreme administrative authority refused to overturn the sanctions imposed by the CNIL (the French data protection authority) on the OPTICAL CENTER company on the grounds that they were not preceded by a formal notice allowing the company to correct the problems.
In 2017, a CNIL investigation initiated following several complaints about OPTICAL CENTER revealed that simply entering URLs in a browser allowed access to many invoices and purchase orders from the company’s customers because due to access not being restricted by connecting to a personal space.
The CNIL then took the decision to impose a fine of 250,000 euros for this serious security breach, which violated Article 34 of the French Data Protection Act [1], without any sort of formal notice allowing the company to correct the errors and even though the company had already taken the necessary measures to correct the problem.
This decision was referred to the Conseil d’Etat which, in its judgment of April 17 2019, confirmed the decision and reminded that the formal notice is not a mandatory step before imposing sanctions, and that Article 45 of the law of 6 January 1978 provides that “Where the breach found cannot be brought into conformity in the context of a formal notice, the restricted formation may pronounce, without prior notice and after a contradictory procedure, the sanctions provided for”.
The Conseil d’Etat concludes from this that the CNIL may overlook the formal notice stage when it is clearly unnecessary; either when the breach cannot be remedied or, as in the present case, when it has already been remedied.
However, the Conseil d’État reduced OPTICAL CENTER’s penalty, ruling that the CNIL, not taking into account the company’s promptness to react to its requests, imposed a disproportionate penalty; the latter will therefore be reduced to 200,000 euros.
Read the full decision here (in French)
[1] Loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés
28
May
2019
TAoMA Partners ranked by the Legal500 EMEA 2019
The entire TAoMA Partners team is proud to be recognized as one of the best French law firms by the Legal500 EMEA 2019 ranking, in the following categories:
“Media and Entertainment – Advertising” law firm;
“IT, Telecoms and the Internet” law firm;
IP “Patent and Trade mark” attorneys.
We extend our deepest thanks to our clients for trusting and working closely with us.
09
May
2019
Google negative reviews: Free Speech vs Data Protection
Author:
teamtaomanews
On April 12th, 2019, a court order from the judge of summary proceedings in Paris rejected a request to delete a dentist’s “Google myBusiness” page and the negative reviews that patients had published there. These pages are available through Google maps to users who search for any entity registered on it, varying from museums and stores to legal firms and fitness gyms.
The dentist argued that the webpage and its content were akin to an illegal processing of her personal data and a manifestly unlawful disturbance.
Although the judge first answered by confirming that the data used to identify a liberal professional was indeed personal, he ruled against ordering the removing of the webpage. He also highlighted that the only liable company in this case was Google LLC, as opposed to Google France which is not in charge of the “MyBusiness” service and as such cannot be considered as the data controller, according to the provisions of the European General Data Protection Regulation (GDPR).
This solution seems to contradict a previous court order delivered by the same jurisdiction, which ruled to delete the “MyBusiness” sheet of another dentist for the sole reason that he expressed his will to have it removed and thus withdrew his consent[1]. It indeed seems questionable that a professional’s personal data could be freely processed by a third party with no other justification than their availability on business directories.
Regarding patients’ reviews on the dentist’s services, the Court ruled that “the consumer’s legitimate interest to be informed” allowed Google to link comments to a doctor’s identity and that the potential abuse of free speech should have been based on different legal grounds than the ones invoked by the claimant; specifically, the Press Act of 1881 (“loi du 29 juillet 1881 sur la presse”) in cases of defamation or insult[2] and Section 1240 of the French Civil Code regarding disparaging speech.
The plain and simple removal of the webpage where the comments were published, on the grounds of the 1978 “Digital Freedom” Act (“Loi Informatique et Libertés du 6 janvier 1978”) would represent a disproportionate breach of freedom of speech, at least when delivered by a judge of summary proceedings.
[1]TGI de Paris, summary proceeding order of April 6, 2018
[2]Further readings (in French)
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