NEWSLETTER

November 2002

TELECOMMUNICATIONS

Telecommunications and Information Society Advisory Board
Royal Decree 1029/2002, of October 4, 2002, sets out the structure and operation system of the Telecommunications and Information Society Advisory Board (Spanish Official Gazette of October 18, 2002)

The Advisory Board advises the Spanish Government on issues concerning telecommunications and the information society. This body reports to the Ministry of Science and Technology through the State’s Secretariat for the Information Society.

The main tasks of this body are:

(i)    To study, analyse and propose to the Government any measures it deems appropriate;

(ii)   To study and inform on draft bills and regulations regarding telecommunications, information society and audio-visual matters;

(iii)   To issue reports on matters over which it is competent when so requested by the Government; and

(iv)   Any other duties assigned to it by law or regulations.

This Royal Decree entered into force October 19, 2002.

Competition in the markets for electronic communication networks and services
Commission Directive 2002/77/EC of 16 September, 2002 on competition in the markets for electronic communication networks and services (EC Official Journal L 249, of September 17, 2002)

The Directive supplements the recently approved EU regulatory framework on electronic communications, confirming the competition criteria set out in the Commission Directive 90/308/EC, which is repealed.

The Directive provides that the Member States shall neither grant nor maintain in force exclusive or special rights for the establishment and/or the provision of electronic communication networks, or for the provision of electronic communication services available to the public, or for the use of frequencies for the supply of said services.

In particular, the Directive provides that Member States shall ensure that:

(i)    General authorisations granted to companies operating in the market shall be based on objective, non-discriminatory, proportionate and transparent criteria.

(ii)   Vertically integrated public companies which provide electronic communication networks and which have dominant position do not discriminate third parties in favour of their own activities.

(iii) Companies that operate cable television networks and public electronic communication networks, and are dominant in the public electronic communication networks market, do not operate both type of networks through the same legal entity.

The Directive entered into force October 7, 2002.

INFORMATION SOCIETY

Creation of the Internet Quality Agency (IQUA)
IQUA was created October 21, 2002, and has three members: the Catalonian Audio-visual Council, the CMT (Commission for the Telecommunications Market) and the Andorran Audio-visual Council.

IQUA is an association based in Barcelona, Spain, the objective of which is to establish quality standards, codes of conduct and recommendations on Internet contents, addressed to the current operators in the Information Society services market.

Operators associated to IQUA must adhere to the general self-regulation principles and the quality rules established by IQUA. Likewise, the adhered operators may display a quality seal on their web-sites that guarantees Internet users the compliance by said operators with the aforesaid rules and principles.

INDUSTRIAL PROPERTY

Registration of a colour as Community trademark
Judgment of the Court of First Instance (Second Chamber), of October 9, 2002. KWS Saat AG vs OAMI, Case T-173/00

In its judgment of October 9, 2002, the European Court of First Instance analysed the registration of a shade of orange (which is identified with the reference HKS7) for certain Class 7, 11 and 31 products and class 42 services.

The Court acknowledged that colours or colour combinations may constitute Community trademarks, in so far as they are capable of distinguishing the goods or services respect of which registration is sought attending to the relevant public's perception of the said signs.

In this regard, the Court pointed out that:

(i)    the relevant public’s perception when the sign consists of a colour is not the same as when the sign consists of a verbal or graphic element independent from the product or service which differentiates it, as the public is more accustomed to the latter case, and

(ii)    in any event, in order for a colour to be eligible to constitute a trademark, it is necessary that the relevant public perceives such sign as an indication of the commercial origin of the relevant product or service. In determining if this would be so, the Court took into account the level and education of the relevant public and the purpose that the colours would apparently serve the public, in connection with the products or services requested.

In this regard, the Court rejected the view that the orange colour could constitute a trademark for seed and agricultural machinery, however, it stated that such colour could constitute a trademark for the services concerned.

The Court’s deliberations with regard to the distinctiveness of trademarks consisting of a colour for products, seem to be applicable in general, to cases where the trademark is mistaken with the external appearance of the relevant product, as is stated below in connection with a judgement of the same date, in the Glaverbel case.

Registration as Community trademark of a design on the surface of a product
Judgment of the Court of First Instance (Second Chamber), of October 9, 2002. Glaverbel vs OAMI, Case -36/01

In this judgement, the Court of First Instance rejected the registration as Community Trademark of an abstract design to be applied to the surface of a glass product.

In doing so, the Court carried out a distinctiveness test similar to that performed in the judgment of the same date regarding the registration of a colour as a Community trademark, insofar as it stated that:

(i)    the public’s perception where the sign consists of a design applied to the surface of a good (or of a colour) is not the same as when the sign consists of a word or figurative element that bears no relation to the good or service which it distinguishes, since the public is more accustomed to the latter situation, and

(ii)   in any event, in order for a design applied to the surface of a product (or a colour) to be eligible to constitute a trademark, the target public must perceive the sign as an indication of the trade origin of the goods or services. In order to ascertain whether this would be so, the Court took into consideration the level and education of the target public and the purpose that the designs in question would apparently serve for the said public in connection with the goods or services for which registration is claimed.

Thus, the Court seems to have established a general rule applicable to all cases in which the signs (motifs applicable to the surface of a product or colour) are mistaken with the external aspect of the product that they intend to distinguish (in the case of this judgement, the design was to be applied over all the surfaces of the product).

INTELLECTUAL PROPERTY

New approach of the Supreme Court to communications to the public in hotel rooms
Judgement of the Supreme Court (Civil Chamber) of September 24, 2002

The Supreme Court examined an appeal in cassation which originated in a claim raised by the main Spanish authors’ collecting society (SGAE) and the Spanish sound recordings producers collecting society (AGEDI) against a hotel for performing unauthorised acts of communication to the public in hotel rooms and common areas.

With regard to the televisions located in hotel rooms, and, deviating from the case law established in its judgement of March 11, 1996, the Supreme Court rejected the argument that the use of televisions may amount to an act of communication to the public.

In this decision, the Supreme Court stated that it was deviating from the case law initially set out by its judgement of March 11, 1996, on the basis of the judgement of the Constitutional Court of January 17, 2002, which considers hotel rooms as domiciles for constitutional purposes.

On the other hand, in line with its judgements of October 29, 1999 and December 18, 2001, the Supreme Court confirmed the SGAE’s capacity to take part in judicial proceedings in representation of authors by bringing to the proceedings its administrative authorisation and By-laws.

The European Commission clears “simulcasting” licences
Decision of October 8, 2002, Case. COMP/C2/39.014, IFPI “Simulcasting”

The European Commission granted through its Decision of October 8, 2002, an individual exemption regarding the agreement of several record producers' collecting societies to introduce provisions that allow for the granting of multi-territorial licences for the transmission of sound recordings by radio and/or TV via the Internet in reciprocal representation agreements.

Having carefully examined the parties’ forecasts with respect to the prices applicable to the licences, the Commission stated that the agreement under analysis complies with the conditions required by Community regulations for the granting of an individual exemption and, in particular, that it reduces the legal uncertainty regarding the Internet, creates a new product, reduces transaction costs and does not impose unnecessary restrictions in order to reach its aims, etc

In view of the fact that the notifying parties had foreseen to operate the agreement for an “experimental period”, after which it would be reviewed, the authorisation is granted until December 31, 2004.

The licences to which the authorised agreement may give rise will have a significant effect in the collecting societies sector, as the same kind of multi-territorial licence may be offered by different collecting rights societies and, thus, it will encourage competition among them.

PHARMACEUTICAL LAW

Misleading advertising of cosmetic products
Judgement of the European Court of Justice (Sixth Chamber) of October 24, 2002. Actions brought against Gottfried Linhart and Hans Biffl. Case C-99/01

The European Court of Justice settles two pre-judicial questions in relation to the admissibility of a regulation of a Member State prohibiting references to medical opinions in the marketing of cosmetic products, without including information as to the content and results of such opinions, insofar as this lack of information may mislead the consumer.

In its reasoning, the Court took into account the following issues:

(i)     Directive 76/768 imposes on Member States the obligation to take all measures necessary to ensure that the labelling and advertising of cosmetic products give the impression that these products have characteristics which they do not have. However, Member States are not permitted to adopt more stringent national measures than those provided for in this Directive.

(ii)   The reference to medical opinions without including any information on the content and results of such opinions could not mislead an average consumer and, in any event, any eventual error relating to those characteristics would not have an adverse effect on public health.

(iii)  Therefore, a national measure that prohibits the inclusion of references to medical opinions in the aforesaid circumstances is a measure to prevent fraudulent advertising stricter than that laid down in Directive 76/768 and, therefore, in conflict with said Directive.

(iv)   National regulations that only permit reference to medical opinions in the above circumstances upon the prior authorisation of the competent authorities also conflict with Directive 76/768, since the need to obtain such authorisation constitutes an unjustified obstacle to the free movement of the product in question.

Magistral formulas and officinal preparations
Judgement of the Supreme Court (Administrative Chamber) of September 18, 2002

The Valencia Association of Pharmacists lodged an administrative appeal against Royal Decree 175/2001, on magistral formulas and officinal preparations. The Association based its appeal on the following pleadings:

(i)     The alleged nullity of the Royal Decree, on the basis of the lack of legal authority for its approval and of fulfilment of the legal requirements regulating the approval procedure, as well as the alleged incorrect use of discretionary administrative power.

The Supreme Court stated that, on one hand, the legal authority for the approval of this Royal Decree derives from the Second Transitional Provision of the Medicines Act. On the other hand, the Court rejected the alleged breach of procedural regulations and the alleged incorrect use of discretionary administrative power, in the understanding that such arguments had not been sufficiently proven by the Association and that they lack legal basis.

(ii)    Additionally, the Association regarded certain provisions of the Royal Decree as encroaching unduly upon the powers of the Autonomous Community of Valencia.

The Supreme Court rejected this claim pointing out that the matters regulated by this Royal Decree concern the manufacture of pharmaceutical products, and that pharmaceutical regulations remain within the exclusive power of the State. The Autonomous Communities, on the other hand, are only responsible for the performance of these regulations.

On the basis of the above, the Supreme Court rejected the administrative appeal and declared Royal Decree 175/2001 as being in accordance with the law.

FOOD LAW

Strengthening of tobacco-related measures
Royal Decree 1079/2002, of October 18, regulating the maximum content of nicotine, tar and carbon monoxide, the labelling of tobacco products, and measures related to ingredients and names of tobacco products (published in the Spanish Official Gazette - BOE- of October 19, 2002)

This Royal Decree is designed to regulate and control the use of tobacco as the main risk of disease and death in first-world countries and a public health priority. The Royal Decree establishes measures aimed at controlling the content of tobacco and provides for stricter requirements in relation to warning labels that must be printed on cigarette packs.

The Royal Decree contains, among others, the following provisions:

(i)    Stricter limits in relation to the maximum content of tar, nicotine and carbon monoxide in cigarettes.

(ii)   regulation of the methods of measuring the content of cigarettes, empowering the Ministry of Health and Consumers to require tobacco manufacturers and importers to carry out tests on the content and effects of tobacco.

(iii)  health warnings that shall be printed on individual packets in spaces reserved especially for this purpose, which is considerably larger than the one imposed by the former regulations, and

(iv)  As of September 30, 2003, the prohibition of any information on cigarette packets in Spain suggesting that a particular tobacco product is less harmful than others.

This Royal Decree entered into force on October 19, 2002. However, the Royal Decree provides for a transitional period in which the commercialisation of cigarettes not complying with the new regulations will still be permitted. This transitional period will end on 30 September, 2003. With respect to other tobacco products, they have until 30 September, 2004 to comply with the new regulations.

New sanitary regulations on water intended for human consumption
Royal Decree 1074/2002, of October 18, 2002, regulating the process of preparation, distribution and commercialisation of bottled drinking water (BOE of October 29, 2002)

This Royal Decree incorporates into the Spanish legal system the aspects related to bottled water contained in Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, combining the innovations contained in said Directive and the provisions contained in the former regulations that are maintained in force.

The purpose of this Royal Decree is to provide a definition of bottled water intended for human consumption and establish rules for its preparation and/or handling, distribution, commercialisation and, in general, the legal regime applicable to said products, including imported bottled drinking water.

The regulation is aimed at producers, commercialisers and, if applicable, importers of bottled drinking water. The Royal Decree entered into force on October 30, 2002, and is a basic regulation, which means that it is applicable throughout the entire Spanish territory.

Certification and control of characteristics of agricultural and food products
Royal Decree 998/2002, of September 27, 2002, on internal regulations for the application of Community regulations on certification of the specific characteristics of agricultural and food products. (BOE of October 12, 2002)

This Royal Decree implements Community provisions on the certification of the specific characteristics of agricultural and food products and, in particular, the process for the relevant applications and authorisation of independent control entities. Thus, the Order of October 6, 1993, which regulated this procedure, is revoked.

In particular, the Royal Decree sets out the competent public bodies for the receipt of applications, the submission and communication of applications to the Spanish and Community Authorities, the possibility of opposing registration, controls carried out by authorised independent control entities or control services designated by the Autonomous Communities, and the creation of a general information Registry in relation to such control entities.

In accordance with Commission Regulation no 2515/1994, of September 9, 1994, the Spanish legislature has established the rule that the labelling of products with specific characteristics registered with the registry of certifications of specific characteristics, must indicate the name of the independent control entity or the designated control service which attests that the product is compliant with the registered characteristics.

This Royal Decree entered into force on October 13, 2002.

Evaluation and control of biocidal products
Royal Decree 1054/2002, of October 11 2002, on the requirements for the authorisation and placing on the market of biocidal products in Spain (BOE of October 15, 2002)

This Royal Decree incorporates into the Spanish legal system Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 regarding the placing of biocidal products on the market (formerly known as non-agricultural pesticides), and is directed at manufacturers, importers, formulators, commercialisers and biocidal services firms.

Firstly, the Royal Decree regulates the requirements for the authorisation and commercialisation of biocides in Spain, which is subject to the prior authorisation of the General Directorate of Public Health, and registration with the Official Biocides Registry of the same public body.

On the other hand, in accordance with the provisions of the aforesaid Directive, the granting of authorisations shall take into account the principle of mutual recognition of authorisations within the Community, by virtue of which a biocide that has been authorised or registered in a Member State shall be authorised or registered in any another Member State.

The Royal Decree also regulates the labelling, packaging and advertising of biocides, and the relevant safety data sheets.

The Royal Decree entered into force on October 16, 2002.