Castrén & Snellman's IP, Technology and Life Science expertise area publishes a newsletter which addresses developments in intellectual property, technology and Life Science laws in Finland and EU.
In this May 2010 issue you will find the following articles:
The IT2000 general terms and conditions for information technology contracts, which are widely applied in the ICT sector in Finland, are being updated and will be published on 19 May 2010 as the IT2010 terms and conditions.
In addition to amendments and updates, the new IT2010 terms and conditions also include new sections on special terms and conditions on the delivery of information systems and new special terms and conditions on services provided through the data network (SaaS). The IT2010 terms and conditions, including the related model framework agreements and guidelines, will be published in Finnish and in English.
A year ago, the Central Chamber of Commerce of Finland, the Finnish Software Entrepreneurs Association, the Finnish Association of Purchasing and Logistics LOGY, the Federation of Finnish Technology Industries and the Finnish Information Processing Association set up an expert working group to update the IT2000 terms and conditions with Mr Jaakko Turunen from the Central Chamber of Commerce acting as the chairman. Castrén & Snellman was represented in the working group by Partner Kimmo Rekola, and Senior Associate Kai Erlund, who acted as the secretary of the working group.
The organisations responsible for managing the general terms and conditions will organise training sessions on the new IT2010 terms and conditions around Finland. Kimmo Rekola and Kai Erlund will participate in these sessions as speakers. For more information (in Finnish), please see: http://www.keskuskauppakamari.fi/Tapahtumat/IT2010-sopimusehdot
By Kai Erlund and Kimmo Rekola
Registration of the world’s first Cyrillic domain names is gathering pace in Russia, and Russian-speaking ‘web surfers’ expect that names in the new top-level .РФ (read as ‘.RF’) domain will begin working this year. The registration period has been extended and the rules for registration have been updated recently, which may benefit foreign companies doing business in Russia.
ICANN (Internet Corporation for Assigned Names and Numbers is the world-wide corporation responsible for navigation in the Internet) announced the development of the .РФ top-level domain in autumn 2009 in connection with the ‘Fast Track Process’ allowing users to type domain names with non-Latin characters. The delegation of this domain to Russia was finally approved on 22 April 2010. A survey held by the leading Russian domain name registrar RU-Center shows that 70.4% of its clients look favourably on Cyrillic domain names. Indeed, it expresses no doubt that catchy simple names can attract more Internet users searching for either goods and services, or just corporate web-pages.
As state authorities do not control domain name registration in Russia, one can ‘register’ a Cyrillic name by entering into a service agreement with one of 16 registrars, which are in fact commercial enterprises. The rules for registering .РФ domain names and mandatory regulations for the registrars are set forth by the Coordination Centre for Top-Level Domain .RU. The Centre’s regulations divide the registration of domain names for companies and individuals (including non-residents) into two stages. The first one is a priority registration implemented for the prevention of cybersquatting and is, therefore, open only to owners of IP rights. After the execution of the priority stage, public registration will be opened to everyone.
The priority registration period was initially intended to expire on 11 May 2010, and the opening of public registration was scheduled for July 2010. However, the Coordination Centre adopted new priority registration rules on 15 April 2010 (effective from 12 May 2010, the rules are adopted by the Decision No. 2010-04/23. Only Russian text is available, see the official web-page or General English information) prolonging the priority period for trademark owners from 12 May to 16 September 2010 and establishing the priority period from 15 July to 16 September 2010 for other applicants vested with the priority rights under new rules. Hence, public registration will begin at least after 16 September 2010, though the exact date has not been announced yet.
Whereas the old priority rules (valid until 12 May 2010) entitle only trademark owners to register a Cyrillic domain name identical to their trademark, the new rules also grant the same priority rights to service mark owners, to all commercial enterprises in respect of their trade names and to certain other entities. Under the old rules, trademarks were to contain only Cyrillic characters that could be reflected in a domain name. In contrast, the new rules grant priority rights to owners of non-Cyrillic text trademarks, as well. In this case, the Cyrillic domain name should be drafted as a transcription of such trademark. Trademarks protected under the international Madrid System give priority rights to their owners as well as trademarks registered in Russia. This fact gives foreign companies, including Finnish ones, an opportunity to easily obtain a domain name ending with symbols ‘.РФ’ and containing a Cyrillic transcription of their trademark before it can be occupied by a third party. The average price for priority registration is about 30 euros. This will be reduced to 15 euros during public registration, though the most attractive names might be already occupied by then.
It should be also mentioned that the new priority registration rules contain several provisions which will probably lead to domain disputes in the future. For example, the transcription of a non-Cyrillic trademark intended to be registered under the new rules may be similar to an existing Cyrillic trademark that has already been registered as a domain name before 11 May 2010 under the old rules. Also, a trademark may be similar to the name or surname of a person who wants to obtain a domain name, but does not have priority rights according to the rules. Due to the fact that the well-known UDRP rules (Uniform Domain Name Dispute Resolution Policy developed by ICANN) are not applied to domain disputes in Russian territory, such cases may be solved only by Russian state courts. Unfortunately, the Russian Civil Code (the main IP act) does not provide any detailed regulation for domain names and does not treat them as intellectual property. The absence of statutory regulations results in lengthy litigations and diverse court decisions. On the other hand, recent legal practice shows a tendency to solve domain disputes in favour of trademark or other IP owners if a claim was brought against a person without any rights to intellectual property reflected in the domain name registered by him.
By Stanislav Rumyantsev
Suomen Markkinapörssi Oy published a journal called Veropörssi (Tax Exhange), which included tax information on 1.2 million Finnish citizens. The company also transferred this information on a CD-ROM to a company called Satamedia Oy, which created a text message service allowing individuals to request anyone’s tax information and receive information on anyone’s earned income and capital income.
The Data Protection Ombudsman appealed to the Data Protection Board to prohibit this service, because the ombudsman was of the opinion that Suomen Markkinapörssi Oy did not have the right to process such data and it was not entitled to transfer the data. The board declined the appeal, stating that the information published only contained unaltered data that had already been published by the media (also called editorial material), and the Personal Data Act did not apply to the processing of such personal data.
The Administrative Court confirmed the Data Protection Board’s decision. The Data Protection Ombudsman appealed to the Supreme Administrative Court, which reversed the previous decisions and remit the case to the Data Protection Board.
After re-processing the case, the Data Protection Board stated that Suomen Markkinapörssi Oy was processing personal data in violation of the Data Protection Act, because it was not considered to be processing for the purposes of journalism or artistic or literary expression. The board also prohibited the transfer of tax information to be used for a text message service or any other purpose.
When deliberating the case, the Supreme Administrative Court requested a preliminary ruling from the Court of Justice of the European Union to confirm whether the procedure in question was to be deemed actual processing of personal data, and if so, was it considered to be processing of personal data for editorial material only? The Supreme Administrative Court stated in its decision that Suomen Markkinapörssi Oy’s processing of personal data was not in accordance with the Personal Data Act, because it was not considered to be an editorial material. The term editorial matter has not been defined in the Personal Data Act, but the Court stated that it refers to situations where personal data is solely used in tasks relating editing and only the personnel has access to such data. The court also stated that this decision does not concern the publicity of tax information in general.
By Eija Warma
Finnish Parliament is currently processing Government Bill 87/2009, to implement Directive 2007/65/EC regarding audiovisual media services (AV directive) in Finland. The changes to legislation were originally intended to enter into force in the beginning of 2010, however, the processing of the bill has been prolonged in Parliament and it is now expected to enter into fore in April or May 2010.
A notable change to the present situation is that the implementation of the AV directive enables product placement (an inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, in return for payment or for similar) in cinematographic works, films and series made for television, sports programmes and light entertainment programmes. Under current legislation product placement is considered to be hidden advertising and thus prohibited.
The proposed legislation includes many limitations and conditions for product placement. Product placement in children’s programmes or of tobacco products or specific pharmaceutical products is always prohibited. In addition, product placement may not a) affect the content and scheduling of programmes, b) encourage the purchase of products or services, c) make promotional or other special reference to the products or d) give undue prominence to the product in question.
Further, viewers must be clearly informed that the programme contains product placement unless the programme in question has neither been produced nor commissioned by the media service provider itself or a company affiliated to the media service provider or if information about product placement is not available for the service provider without unreasonable effort.
It should be noted that product placement infringing the conditions set in the legislation is still considered hidden advertising and is, thus, prohibited.
By Teemu Ruikka
The Finnish Communications Authority (FICORA) has the power to impose an obligation on one or more telecommunications operators to provide subscribers the possibility to have an appropriate Internet connection.
The previous requirements for an appropriate Internet connection were based on the Finnish Communications Market Act (393/2003) and were rather low and in practice meant a connection allowing the browsing of web pages and e-mail (30–50 Kb/s).
In October 2009, The Finnish Ministry of Transport and Communications issued a decree concerning the minimum speed of Internet connections (732/2009). According to the decree, the minimum connection speed for incoming traffic must be 1 Mb/s starting from 1 July 2010. However it is sufficient that the average connection speed for incoming traffic is 750 Kb/s during a 24-hour measuring period, or 500 Kb/s during any 4-hour measuring period.
This decree together with the provisions of the Communications Market Act guarantees the availability of an ‘appropriate’ Internet connection (i.e. one that complies with the minimum speed requirements) for everyone with a permanent place of residence in Finland. As a result of the minimum requirement set in the decree, appropriate Internet connections in Finland are now in practice defined as broadband connections. This is a significant difference to the majority of other countries, where an appropriate Internet connection typically means a data rate that is sufficient to permit functional Internet access.
It should be noted that the Finnish government has also set a further ambitious goal to have a 100-megabit connection available for everybody throughout the country by 2015.
The decree is likely to increase e-commerce within Finland as well as across the border by improving the availability of (appropriate) Internet connections and it will particularly affect small- and medium-sized businesses located outside the major cities, as fast data transfer will increase the possibilities to run a business regardless of your location. Further, the ambitious goal of making 100 Mb/s connections available to everyone in Finland by the end of 2015 will surely have significant impacts at least when it comes to the utilisation of various kinds of multimedia content online.
By Arto Linnervuo and Teemu Ruikka
For further information, please contact
Arto Linnervuo, Head of the IP, Tehcnology & Life Science expertise area
Petri Rinkinen and Jan Lindberg, Heads of IP
Hanna Paloheimo, Head of Life Science
Copyright © Castrén & Snellman Attorneys Ltd, 2010. All rights reserved. Any re-use of the content of this Newsletter requires our prior written consent. IP,Technology & Life Science News is provided by Castrén & Snellman for general information purposes only and is not intended to offer legal advice.