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Global Media and Communications Watch

The International Legal Blog for the Tech, Media and Telecoms Industry

Posted in Intellectual Property, Internet Brendan C. Quinn

U.S. Supreme Court rejects categorical rule that generic term plus “.com” results in a generic composite

The United States Supreme Court holds that adding a top-level domain, like “.com”, to an otherwise generic term does not automatically result in a generic composite, and that a genericness determination must consider the significance of the term to consumers. The case is U.S. Patent & Trademark Office v. Booking.com B.V., U.S., No. 19-46 (2020).

Booking.com – an online travel company that provides hotel and other reservation services – filed four trademark applications for the mark “Booking.com” with different visual features. The United States Patent and Trademark Office (the “PTO”) and Trademark Trial and Appeal Board denied registration on the basis that “booking” is generic for travel reservations and “.com” merely signifies a commercial website.

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Posted in Policy & Regulation

Webinar: How to effectively do business with UK government

Doing business with governments – winning opportunities, negotiating successfully, and delivering profitability – is an art and a science. At a time of unprecedented government intervention, it has never been more important to ensure effective engagement, whether to win new contracts or secure investments, grants, or loans. You know how to succeed in the United States. In this webinar, we want to equip you to navigate the UK government environment by:

  • Highlighting similarities and differences between the UK and U.S. regulatory, procurement, and political systems.
  • Giving you insights into how the UK government thinks and behaves.
  • Helping you understand the tools available to you to succeed.

Led by lawyers from both our UK and U.S. offices, we will cover:

  • The legal and policy environment.
  • How to gather intelligence and build credibility within UK government.
  • How to stick by the rules and win.
  • How to negotiate with UK government at speed and under pressure.
  • Lessons learned from complex projects.

We would be delighted if you could join this interactive session focused on helping in-house counsel in U.S. businesses navigate the intricate network of UK government institutions, policies, and processes crucial for doing business successfully.

To register, please click here.

Date: 1 July 2020

Time : 10:30 a.m. – 11:30 a.m. EDT | 3:30 p.m. – 4:30 p.m. BST

Moderator: Michael J. Vernick, Head of the Government Contracts practice, Washington, D.C.


Posted in Data Protection & Privacy Elisabethann Wright

Belgian DPA Issues Guidance on Temperature Measurements in the Context of COVID-19

In the context of their return-to-work policies companies are seeking solutions to detect individuals with fever at the entrance of their premises with the aim of preventing further contamination within the buildings. This can be achieved by means of conventional thermometers, digital fever scanners directed at the forehead of the person, or sophisticated thermal camera systems. The Belgian Data Protection Authority has issued a guidance in which it adopts a strict position regarding the implications of temperature screenings for individuals’ data privacy rights. More specifically, it provides that the simple act of taking a temperature falls within the scope of the GDPR even if the temperature measurement itself has not been recorded. The guidance also provides that in light of Article 4, paragraph 2 of the GDPR, measuring temperature by means of an advanced digital process is subject to the requirements of the Regulation.

On 5 June 2020, the Belgian Data Protection Authority (DPA) issued a guidance regarding temperature screenings within the context of the return-to-work policies developed by companies following the COVID-19 pandemic. In the guidance, the Belgian DPA addresses, among others, the privacy concerns arising from different methods of temperature screening.

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Posted in Artificial Intelligence, Policy & Regulation

Outlook on a common liability framework for high-risk AI systems in the EU

In May 2020, the European Parliament’s Committee on Legal Affairs took the initiative and published a draft report with recommendations to the Commission on a civil liability regime for artificial intelligence (AI) (the Draft Report). The Draft Report provides an outlook on some of the legal concepts that will be subject to discussion in a future legislative process.

Directive 85/374/EEC (PL Directive) and the Draft Report are considered by the Committee as two pillars of a common liability framework for AI systems and it acknowledges that such a project requires close coordination between all political participants. The Draft Report recommends drawing up an EU regulation on liability for the operation of AI systems and presents a proposal for such a regulation. The proposal suggests strict liability on the part of the “deployer” of certain “high risk” AI systems and an intensification of the deployer’s liability for other AI systems.

The debate on the appropriate legal concept for AI liability is ongoing. We therefore assume that the Draft Report will still be subject to amendments. Also, the proposal to implement the concept by way of a regulation, i.e. an act directly applicable in the Member States, could entail further discussions, as product liability was harmonized by way of the directive.

The amendments to the Draft Report are expected to be debated in the Legal Affairs Committee in late June or early July 2020. A vote on the report is scheduled for 28 September 2020, followed by a plenary vote in October 2020.

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Posted in Data Protection & Privacy

Facial Recognition Challenged by French Administrative Court

In a decision (French only) dated 27 February 2020, the French Administrative Court of Marseille invalidated the deliberation of the Provence-Alpes-Côte d’Azur Regional Council which allowed to set up, on an experimental basis, a facial recognition mechanism in two high schools in order to (i) better control and speed up entry of students into the high schools and (ii) control access to premises of occasional visitors.

This decision is important as this is the first administrative court decision in France about facial recognition. Since the GDPR entered into force, it is also the first French administrative court decision relating to data protection not based on a deliberation issued by the French Data Protection Authority (CNIL), which was already quite uncommon before GDPR’s entry into force.

Facts and procedure

On October 2017, the President of the Provence-Alpes-Côte d’Azur Regional Council consulted the CNIL to request its assistance in setting up, on an experimental basis, a facial recognition system in two high schools in the South of France to be used at the entry and inside the premises to control access of students and visitors. Although the experiment had not been authorized by the CNIL, the Regional Council, in a deliberation (French only) dated 14 December 2018, decided to launch it. Expressly opposed to this measure, several French data protection and human and civil rights associations, including the French association “La Quadrature du Net“, filed an action for annulment of the Regional Council’s deliberation before the French Administrative Court of Marseille on 14 February 2019.

In the meantime, the Regional Council pursued its discussions with the CNIL and communicated to it the data protection impact assessment (DPIA) drafted for the facial recognition experiment. On October 29, 2019, the CNIL finally published on its website a press release (French only), in which it considered, based on the finalized version of the DPIA communicated by the regional council, that the experiment, which concerned students, most of whom were minors, with the sole aim of making access to their high schools more fluid and secure, was neither necessary nor proportionate to achieve the intended purposes.

In its decision (French only) of 27 February 2020, the French Administrative Court of Marseille took up most of the points raised by the CNIL in its press release and invalidated the decision of the Regional Council insofar as it (i) had not provided sufficient guarantees to obtain free and informed consent of students to the processing and (ii) did not demonstrate that the purpose of checking the entrances to the high schools could not be achieved by other, less intrusive means.

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Posted in International Trade and Investment Brian Curran

Two Key CFIUS Developments: CFIUS Publishes 2018 Annual Report and Proposed Regulations Revising Critical Technologies Mandatory Filing Program

CFIUS Publishes 2018 Annual Report

The Committee on Foreign Investment in the United States (CFIUS), a U.S. government interagency committee that conducts national security reviews of foreign investments, recently released its 2018 annual report. The report takes into account cases reviewed by CFIUS both before and after the August 2018 enactment of the Foreign Investment Risk Review Modernization Act (FIRRMA), which expanded CFIUS’ jurisdiction and enabled CFIUS to implement a pilot program that mandated filings for certain transactions involving critical technologies. The annual report confirms that, in 2018, China topped all foreign investors for the seventh year in a row, and describes CFIUS’ review of the first declarations submitted under the CFIUS pilot program.

Proposed Rule Would Alter Mandatory Filing Requirements

On 21 May 2020, CFIUS also published a proposed rule (the Proposed Rule) in the Federal Register that, among other things, would alter the requirements for the critical technologies mandatory filing program implemented on February 13, 2020 (essentially the successor to the pilot program). The Proposed Rule seeks public comment within 30 days of its publication. The Proposed Rule would replace the “industry” criterion of the critical technologies mandatory filing program with a criterion related to whether certain U.S. government authorizations would be required to export, re-export, transfer (in country), or retransfer the “critical technology” that the U.S. business produces, designs, tests, manufactures, fabricates, or develops to certain transaction parties and foreign persons in the ownership chain.


We will continue to monitor this space for further developments. For further information or assistance regarding transactions potentially subject to CFIUS’ jurisdiction, please do not hesitate to contact any of the authors.

Posted in M&A

Negotiating M&A transactions in the COVID-19 era: considerations for navigating new opportunities in uncertain waters

As businesses around the world continue to adapt to new day-to-day realities and challenges brought about by the COVID-19 pandemic, priorities necessarily shift to near-term concerns. Nevertheless, times of significant disruption also give rise to new opportunities for both strategic buyers and financial sponsors.

Whether in the form of distressed M&A, defensive M&A, or strategic combinations – many industries are expected to see rapid, significant change in the weeks and months ahead. Evaluating M&A opportunities in the world that will exist as economies around the globe find a way forward calls for a fresh, comprehensive approach to thinking through every aspect of a transaction – and with this we could see some divergence from pre-COVID-19 market practice.

This is necessary not only to account for how the world has changed already, but also to anticipate and prepare for the uncertainties that lie ahead.

Click here to read our thoughts on some of the key issues to consider when negotiating M&A transactions in the COVID-19 era and how we expect the approaches taken by buyers and sellers to differ from those taken previously.

Posted in Policy & Regulation

Hogan Lovells Launches Global Privacy Guide to Support Businesses with COVID-19 Exit Plans

As the world focuses its efforts on the right strategy to beat the coronavirus and make normal life safe again, businesses are devising and implementing a variety of measures to deal with the COVID-19 crisis which rely on the collection, use and dissemination of personal data.

To assist with this challenge and ensure that privacy and cybersecurity aspects are appropriately addressed, Hogan Lovells has released a detailed guide providing legal analysis and practical recommendations.  The guide has been prepared by a team spanning its 45 offices around the world and led by the firm’s Global Regulatory practice.

It includes in-depth guidance and actionable tips for business in relation to measures such as COVID-19 testing, temperature screening, immunity certificates, and contact-tracing apps. Other critical areas such as customer communications, data processing during clinical trials, cyber risks and potential litigation risks, are also carefully considered.

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Posted in Copyright, Intellectual Property Eugene LowCharmaine Kwong

Cheaper in-app purchases… tempting but what is at stake?

Mobile applications are becoming indispensable in our daily lives and businesses. There are many ways to monetize a game app – through showing ads, offering free trials, income from in-app purchases etc. Unfortunately, there are people who reap profit from unauthorized in-app purchases. This also gives rise to potential legal issues such as infringement of intellectual property rights, money laundering, fraud and hacking. This article provides an overview of in-app purchases in games and the potential remedial actions.

With the global lockdown and travel restrictions in place, we are seeing an increase in online activities – social media, streaming entertainment, digital banking, video conferencing, food delivery, games and so much more. Many of these activities heavily rely on mobile applications – “apps”.

While apps touch on many facets of our daily lives and businesses, in this article we will look at the topic of unauthorized in-app purchases in games.

What are in-app purchases

You may wonder how app developers make money if the game apps are available for download free-of-charge. Out of the many ways to monetize an app (such as showing ads and offering free trials before charging for subscriptions), this article focuses on income generated from in-app purchases.

In-app purchases in games may come in the forms of:

  1. Consumables: game currency, extra health points or chances in a game, costumes/ skins for characters, upgrades to functionalities etc.
  2. Non-consumables: remove ads, upgrade to full/premium content, unlock bonus levels etc.

Payment is typically made through the app stores, with the sum distributed among app stakeholders.

Cheaper ways to buy?

Unfortunately, there are people who create cheats and monetize unauthorized in-app purchases.

By way of illustration, some websites claim to provide cheats, hacks or “legitimate” ways to charge game currency on your behalf at just a fraction of the official price you see in-app.

Such offerings might run into legal issues such as:

  • Money laundering
  • Usage of fake credit cards
  • Fraudulent refunds (claiming that the currencies did not come through after payment when in fact they did)
  • Hacking into the app algorithms

These unauthorized offerings may prejudice the financial success of the legitimate game developer, e.g. through a decrease in the number of people buying the authorized in-game contents.  They may also threaten the security of online accounts as many of these in-app purchases would require sign-ins, passwords or even identify verification.

Watch out!

There are a variety of actions that legitimate app developers and operators can take against these unauthorised in-app purchases. For example, app developers and operators can consider:

  1. Whether there is a breach of app/game user agreement which may trigger account suspension.
  2. Whether there is infringement of intellectual property rights (e.g. app trademark, copyright).
  3. Whether there are criminal activities involved, e.g. money laundering, unauthorised bank currency remittance or fraud.

Are you seeing suspicious in-app purchases hurting your app? Please do reach out to your Hogan Lovells contact to see how we can help.

Authored by Eugene Low and Charmaine Kwong.

Posted in Copyright, Intellectual Property, patents, Technology Burkhart GoebelMiriam GundtCeline CrowsonLloyd Parker

Global Intellectual Property Outlook 2020 – Two steps forward and a look back

Our fourth annual Global Intellectual Property Outlook reflects on some of the biggest developments from 2019, and provides valuable insights on upcoming changes in 2020. From key decisions and the latest case law, to how emerging technology, policy and trade will impact your IP portfolio and strategy.

The start to 2020 has been an unprecedented time for us all. As citizens, businesses, governments and regulators adjust to the new challenges presented by the global spread of COVID-19, and social distancing and remote working become the new norm, there is no doubt that the way we conduct business is going to change for the foreseeable future.

We are here to help you adjust to the new challenges. Our latest thinking and guidance can be found on our COVID-19 Topic Centre, which includes an IP Office tracker and an IP Litigation tracker to help you keep up to date with guidance from IP offices and courts around the world. And, of course, we are here to discuss the challenges you’re facing and offer our support.

As we look ahead, we should not lose sight of major developments in IP law and other trends shaping products and businesses. Our Global Intellectual Property Outlook is here to help you prepare for those changes.

Topics covered include:

  • Patents
  • Standard Essential Patents (SEPs)
  • Post-grant proceedings
  • Trade secrets
  • Trademarks
  • Copyright
  • Domain names
  • International Trade Commission (ITC)
  • IP transactions
  • IP arbitration

We also examine emerging trends in technology, law and politics, and what they mean for your business, including:

  • 3D printing
  • Artificial intelligence
  • Blockchain and smart contracts
  • Brexit
  • Cybersecurity
  • Digital health
  • Digital Single Market
  • Esports
  • Influencer marketing

You can read our interactive publication here.