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URÍA & MENÉNDEZ
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The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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TMTTELECOMMUNICATIONSThe Telecommunications Market Commission (“CMT”) has adopted interim measures to facilitate access to information regarding the telephone information service on subscribers’ numbers through number 1003The CMT has adopted interim measures in connection with the telephone information service on subscribers’ telephone numbers, which is currently being rendered on a competition basis. These measures aim to provide users with access to neutral information during a provisional four month period, and allow them to familiarize themselves with the new 118AB short numbers through which several operators render these services. (More information) Recommendation of the European Commission on relevant product and service markets in the electronic communications sectorThis Recommendation completes the new regulatory framework for electronic communication networks and services introduced in 2002, which must be incorporated into national legislation before July 24, 2003. The Recommendation identifies those product and service markets within the electronic communications sector whose characteristics may justify the national authorities imposing the regulatory obligations set out in the new regulatory framework. (More information) INFORMATION SOCIETYA new plan for “.es” domain namesCMT Order 662/2003, of March 18, approves the National Plan of domain names under the (“.es”) country code. This plan, which supersedes the former one, introduces more flexibility and new legitimated subjects and creates third level domain names. (More information) INDUSTRIAL PROPERTYSense and scope of the concept of identity between signsThe Court of Justice has analysed the concept of “identity” between signs in order to establish the scope of the negative side or ius prohibendi of the exclusive right conferred to the owner of a trademark. (More information) Rules of distribution of the burden of proof in case of exhaustion of the trademark rightThe European Court of Justice has established an exception to the general rule in view of which the burden of proof of the objective requirements of the exhaustion of the rights conferred by trademarks falls wholly on the third party who invokes it. (More information) COPYRIGHTNew Regulations governing the Copyright General RegistryRoyal Decree 281/2003, of March 7, approves new Regulations governing the Copyright General Registry. These Regulations eliminate the requirement of a public deed for the registration of a transfer of rights. (More information) PHARMACEUTICAL LAWAbuse of dominant position by the bodies which run the Spanish health systemThe European Court of First Instance (“CFI”) dismissed the action for annulment brought by FENIN against a Decision of the European Commission, rejecting the complaint lodged by this Federation against the bodies which run the Spanish health system (“SNS”) on the grounds of an alleged abuse of dominant position prohibited by Article 82 of the EC treaty. The Court, as well as the Commission, considered that this provision was not applicable to the bodies which run the SNS where they purchase goods for use in connection with an activity which is not economic in nature, but based on the solidarity principle and with social purposes. (More information) Advertising and marketing of medicines via InternetIn case C-322/01, the Advocate General of the European Court of Justice (“ECJ”) concluded that a national measure such as the German prohibition of mail order trade in medicines which are required to be sold through pharmacies, and on related advertising, could be justified on the basis of the protection of health and human life despite entailing a restriction upon the free movement of goods. Furthermore, the Advocate General took the view that a measure prohibiting advertisements on the internet for human medicinal products, which also offer the opportunity to purchase, was consistent with EC law. (More information) FOOD LAWA non-harmonised national provision on labelling of foodstuffs is deemed to be justified on the ground of prevention of fraudDirective 2000/13/EC, of March 20, 2000, on the approximation of the laws of Member States relating to the labelling, presentation and advertising of foodstuffs does not preclude the application of a national rule which provides that, where the period of minimum durability of a foodstuff has expired, that fact must be indicated separately, in a clear and generally intelligible manner. Such rule is a non-harmonised national provision justified on the grounds of prevention of fraud. (More information) |
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CMT Order of March 13, 2003
By Order of March 13, 2003, the CMT found that there is an urgent need to grant protective interim measures to overcome the lack of appropriate information on the new 118AB short numbers allocated by for the provision under competitive conditions of the new sew telephone query service on other customers’ telephone numbers.
In this regard, the CMT admitted that the Ministry’s Order of 26 March 2002 liberalising this service did not establish a procedure to publicise the new 118AB short numbers to the public in the transitional period from April 4 2003 (termination date of the 1003 number) until users are fully aware of the different numbers trough which they could have access to such service. Due to this lapse of time, the licensed operators and in particular the operator that has traditionally carried out this service in the area of the Universal service, have informed their customers of the termination of the 1003 service and its substitution by the corresponding 118AB numbers.
In order to avoid the operator who has usually been providing this service in the area of the Universal service through the 1003 number taking any competitive advantage by using this well-known number to provide information solely on the new numbers that have been allocated to it by the CMT, the CMT has adopted the following measures:
(i) As from 4 April 2003 and during the following four months, all telephone calls addressed to the 1003 number would receive a recorded message providing neutral information on the 118AB numbers that have been allocated to operators who have requested Telefónica de España, S.A.U. (“Telefónica”) to be included in the information system pursuant to paragraph (ii) below. In order to avoid damages that could arise from the fact that certain numbers appear always in the first or last place in the list, the order of appearance must be randomly determined.
(ii) The operators entitled to provide the new service could request Telefónica, prior to 20 March 2003, if it is interested in joining this information system. Notwithstanding the above, as from that date, the operators could also request it during the first fifteen (15) days of the following months: April, May, June and July. Its numbering would be included in the informative speech as from the first day of the following month.
(iii) The cost incurred by Telefónica arising from the provision of the aforementioned informative message would be approved by the CMT and is to be allocated amongst the operators that have requested to be included in the said recorded message.
Recommendation of the European Commission of February 11, 2003 on Relevant Product and Service Markets within the electronic communications sector susceptible to ex ante regulation (published in the OJ of May 8, 2003)
On February 13, the European Commission has issued a Recommendation on Relevant Product and Service Markets within the electronic communications sector susceptible to ex ante regulation (the “Recommendation”) as provided by Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services (the “Framework Directive”).
The Recommendation aims to ensure that Member States work from a common basis when analyzing the level of Competition in the relevant product and services markets, in order to move towards a single market for electronic communications. Thus, according to the Framework Directive, when exercising their power of ex ante regulation, the National Regulatory Authorities in the different Member States (“NRAs”) must take into account the criteria and relevant markets set forth by the Commission in the Recommendation, in order to ensure an appropriate degree of competition in the relevant markets.
The NRAs may only regulate markets not defined in the recommendation in the cases where national circumstances so justify, provided no objection is raised by the European Commission.
In this regard, the Recommendation analyzes the existing markets and establishes, inter alia, the following markets as susceptible of ex ante regulations:
1. Retailer markets, in which the following services are provided for residential and non-residential customers at a fixed location.
(i) Access to the public telephone network;
(ii) Publicly available local and/or national telephone services;
(iii) Minimum set of leased lines;
2. Wholesale markets:
(i) Call origination on the public telephone network provided at a fixed location;
(ii) Call termination on individual public telephone networks provided at a fixed location;
(iii) Access and call origination on the public mobile telephone network;
(iv) Wholesale unbundled access to metallic loops and subloops for the purposes of providing broadband and voice services;
(v) Wholesale broadband access; and
(vi) Wholesale national market for international roaming on public mobile networks.
Order CTE/662/2003, of March 18, 2003, approving the National Plan of Internet domain names under the country code corresponding to Spain (“.es”) (published in the Spanish Official Gazette -BOE- on March 26 2003)
The new National Plan of Internet domain names (the “Plan”) implementing the Sixth Additional Provision of Law 34/2002 of July 11, of the information society services and electronic commerce, shall enter into force on April 27, 2003, abolishing the plan currently in force (however, this will not affect the validity of previously registered Domain names).
The Plan mainly regulates the following issues:
1. Allocation of second level domain names (“.es”).
The following individuals and entities are entitled to apply for the allocation of second level domain names:
- Individuals that are resident in Spain,
- Entities with or without legal personality incorporated under Spanish law,
- The first branch in Spain of foreign entities; and
- Certain public authorities, as well as national and international public bodies.
The criteria for the allocation become more flexible:
(a) Companies and legal entities may apply for the following domain names:
- the full name of the organization,
- a short form of the full name,
- commercial names or trademarks, if applied for by their owner or licensee, and
- protected denominations of origin, if applied for by the relevant Regulating Council.
(b) Individuals may apply for the obtention of the following domain names:
- their name and surname (at their option, followed by a number),
- commercial names or trademarks, if applied for by their owner or licensee, and
- in the case of profesionals, either their name and a surname, or their surname or surnames, or the name of their establishment, or any similar name under which they are known in the business.
The plan also sets out several prohibitions (e. g. as a general rule, the domain name may not be identical to top-level domain names, or consist of locations or generic words).
2. Allocation of third level domain names (“.com.es”, “.org.es”, “.nom.es”, “.gob.es” and “edu.es”).
Third level domain names shall be implemented gradually, according to a calendar which has still not been put into concrete terms. As regards allocation criteria, third level domain names are regulated in a more flexible way. On the first stage, the holders of second level domain names shall be entitled to register the third level domain name equivalent thereto.
3. Other issues
Finally, the plan regulates, inter alia, the following issues:
- special domain names,
- syntax rules,
- the non- transferable character of domain names,
- rights, obligations and liabilities in the use of domain name,
- legal framework applicable to registration agents of domain names, and
- the existence of tender procedures for the allocation of certain domain names with special market value (pending further regulation).
Judgment of the Court of Justice, of March 20, 2003, CTS Diffusion S.A. versus Sadas Vertbaudet, S.A., Case C-291/00
Whithin the context of a preliminary ruling submitted by the Paris Court of Grande Instance, the Court of Justice examines the concept of “identity” between signs in order to establish the scope of the negative side or ius prohibendi of the exclusive right conferred to the owner of a trademark.
This preliminary ruling refers to the interpretation of Article 5.1 of the First Trademark Directive, which states that the registered trademark confers on its proprietor an exclusive right to prevent unauthorised third parties from using, in the course of trade: (a) any sign which is identical with the trademark in relation to goods or services which are identical to those for which the trademark has been registered; and (b) any sign where, because of its identity with, or similarity to, the trademark and the identity or similarity of the goods or services covered by the trademark and the sign, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association between the sign and the trademark.
The Court now intends to extend the cases of identity provided by (a) above, in which, in words of the Court, the granting of absolute protection is not conditional upon evidence of a likelihood of confusion. Indeed, even though the Judgement states that the concept of identity must be construed narrowly, it also states that a sign is identical to a trademark not only if it reproduces, without any modification or addition, all the elements constituting the trademark but also in the cases where, viewed as a whole, such sign contains only differences so insignificant that they may go unnoticed by an average consumer, who rarely has the chance to make a direct comparison between signs and trademarks and must place his trust in the imperfect picture of them that he has kept in his mind.
Judgement of the Court of Justice dated April 8, 2003, Doren + Q. GmbH versus Lifestyle sports + sportswear Handelgessellschaft mbH, Case C 244/00
Within the framework of a preliminary ruling submitted by the German Bundesgerichtshof, the Court of Justice establishes the distribution of the burden of proof that must govern the exception of the exhaustion of the trademark right in the infringement proceedings.
The preliminary ruling dealt with the interpretation of Article 7.1 of the First Trademark Directive. This provision, under the heading “exhaustion of the rights conferred by a trademark”, sets out that the trademark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trademark by the proprietor or with his consent.
The Court sets an exception to the general rule stating that the full burden of proving the factual conditions for exhaustion of the right conferred by a trademark lies with the third party who invokes it, as it is a plea in defence.
The Court bases its decision on the adaptation of the general rule concerning the burden of proof on the requirements deriving from the protection of the free movement of goods. In this sense, the Court of Justice has pointed out that in the event that the defendant succeeds in establishing that there is a real risk of partitioning of national markets if he himself bears that burden of proof, particularly where the trademark proprietor markets his products in the European Economic Area using an exclusive distribution system, it is for the proprietor of the trademark to establish that the products were initially placed on the market outside the European Economic Area by him or with his consent. If such evidence is adduced, it is for the defendant to prove the consent of the trademark proprietor to subsequent marketing of the products in the European Economic Area.
Royal Decree 281/2003 of March 7, which approves the Regulations governing the Copyright General Registry (published in the Spanish Official Gazette on March 28, 2003)
Royal Decree 281/2003 of March 7, approves the new Regulations of the Copyright General Registry, and repeals the former Regulations (approved by Royal Decree 733/1993).
The new Regulations, like the previous ones, establish the Copyright General Registry as a voluntary means of protection of copyright, in accordance with Articles 144 and 145 of the Copyright Act. The protection offered by the Registry mainly consists of the presumption that the rights entered on the register are in existence and belong to the registered holder as stated therein. However, this presumption may be rebutted should there be evidence to the contrary
The new Regulations of the Copyright General Registry were introduced mainly as a result of the creation of regional registries by the Autonomous Regions (incorporated, together with the Central Registry, as part of a single national Copyright General Registry), along with the increasing development of new technologies and new media, as well as the reform of general administrative procedural regulations.
Amongst the changes introduced by the new Regulations, these remove the mandatory requirement of a public deed to transfer or modify rights of copyright (in a similar way as the current trademarks system).
It is also worth noting an important aspect of the old regulations which remains, that is, the flexible nature of the connecting factors that determine the jurisdiction of a certain registry. In effect, the new Regulations provide that the competent Registry for the first entry of rights of copyright shall be the regional registry in which the application is made.
Judgment of the Court of First Instance of 4 March, 2003, FENIN (Federación Nacional de Empresas de Instrumentación Científica, Médica, Técnica y Dental) / Commission Case T-319/99
FENIN lodged a complaint with the European Commission alleging an abuse of a dominant position in the Spanish market of medical goods and equipment on behalf of the twenty-six bodies that run the Spanish health system (“SNS”). According to FENIN, the average delay in paying for these goods is 300 days, but FENIN is not able to exert any pressure on the SNS bodies because they enjoy a dominant position (art. 82 of the EC Treaty).
However, the Commission rejected this complaint on the basis that the bodies running the SNS were not acting as undertakings when buying medical goods and equipment, and therefore Article 82 was not applicable.
FENIN then brought an action before the Court of First Instance challenging the Commission's decision on three grounds: (i) error in law or manifest error of assessment in the application of Articles 82 EC and 86 EC; (ii) infringement of its rights of defence; and (iii) inadequate statement of reasons and a lack of transparency.
With respect to the first plea, the CFI stated that “an organisation which purchases goods - even in great quantity - not for the purpose of offering goods and services as part of an economic activity, but in order to use them in the context of a different activity, such as one of a purely social nature, does not act as an undertaking simply because it is a purchaser in a given market”. The CFI also found that the SNS operates according to the principle of solidarity in that it is funded by the State and it provides services free of charge to its members on the basis of universal cover. Therefore, Article 82 of the EC Treaty is not applicable.
The second plea was also dismissed on the basis that, as Article 82 is not applicable, there was no point in the Commission considering the other aspects of the applicant's complaint. Finally, the CFI dismissed the third plea, finding that the decision was not vitiated by any inadequacy in its statement of reasons, and that the Commission had fully respected the applicant's rights as complainant.
Conclusions of the Advocate General, issued on 11 March 2003, Case C-322/01
The Advocate General issued her opinion on certain questions raised by a German court in the context of judicial proceedings between Deutscher Apothekerverband and 0800 DocMorris NV (“DocMorris”).
Deutsche Apothekerverband e.V. is a German association for the protection of the economic and social interests of the pharmacists’ profession in that country (the “Association”). DocMorris is a Dutch pharmacy which markets medicines for human use through the Internet.
The Association brought an action against DocMorris before a German court, objecting to the offer for sale of medicines on the internet and their delivery by cross-border mail order. In the context of these proceedings, the German court sought a preliminary ruling from the ECJ on a number of questions regarding the compatibility of the German legislation with Articles 28 and 30 of the EC Treaty.
In the view of the Advocate General, a national regulation prohibiting pharmacies authorised in other Member States from selling by mail order or internet medicines which are required to be sold through pharmacies (including individual orders placed by internet), hinders the free movement of goods within the Single Market. Nevertheless, this prohibition may be justified on the basis of protection of health and human life, insofar as it refers to medicines that require authorisation but have not been authorised either in the country of import i.e. Germany, or at Community level (unless the medicine was bought by suppliers in the country of import).
However, if the prohibition refers to medicines that have been authorised or do not require authorisation, the Advocate General considered that this would constitute a violation of the principle of proportionality if the objectives pursued could be secured using methods which were less restrictive on intra-community trade. The burden of proving that such measures are justified rests upon the State of import.
Moreover, the Advocate General stated that the offer for sale of medicines for human use on an internet page, providing the opportunity to buy such products through the site, could be regarded as advertising to the public. Therefore, a national measure prohibiting the advertising of medicines which can be purchased by mail order would be consistent with Directive 92/28 (now replaced by Directive 2001/83). However, the Advocate concluded that a ban on the advertising of medicines which are not for human use would create a restriction upon the free movement of goods which could only be justified if its objective was to protect the national system of authorisation of medicines, and if it was proportionate to that aim.
Judgment of the European Court of Justice of 13 March 2003, Susanne Müller, Case C-229/01.
This judgement of the European Court of Justice (“ECJ”) resolves a question referred for preliminary ruling regarding the interpretation of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the final consumer (which, after several amendments, was consolidated and replaced by Directive 2000/13).
Article 3(1) of Directive 2000/13 states that the labelling must provide indication of the date of minimum durability or the use by date. Directive 2000/13 further provides that Member States may not prohibit trade in foodstuffs which comply with European regulations through the application of non-harmonised national provisions on the labelling and presentation of foodstuffs, unless such non-harmonised national provisions are justified on the grounds of protection of public health or prevention of fraud.
The question that was referred to the ECJ for a preliminary ruling arose in penal administrative proceedings brought against an individual by the Republic of Austria, on the grounds of an infringement of national provisions on the labelling of foodstuffs. Under Austrian legislation (1993 Regulations on the labelling of foodstuffs, Article 10) “'[i]f the period of minimum durability has expired, this fact must be indicated in a way which is clear and comprehensible to everyone”. The requirement set out in this Article is not included amongst the compulsory information on the labelling of foodstuffs established under Article 3 of Directive 2000/13.
The Austrian Government submitted that the additional information required under the national rules is a non-harmonised national provision within the meaning of Directive 2000/13, which is justified on the grounds of prevention of fraud and protection of public health as set out in Directive 2000/13. The ECJ shared this point of view, and stated that the national measure in question was justified on the grounds of prevention of fraud, since the obligation to indicate in a clear and comprehensible manner the fact that the period of minimum durability has expired is far less limiting on the trading of goods than an outright prohibition of commercialization. As a result, such a measure did not go beyond what was necessary to prevent fraud, and was considered proportionate.