Newsletter n°4 (April 2024)
✨ ARTIFICIAL INTELLIGENCE ✨
➡️ CNIL publishes its first recommendations on the development of artificial intelligence systems
Following a public consultation, the CNIL has published its first recommendations on the development of artificial intelligence systems.
These recommendations are designed to support players in the AI ecosystem in their efforts to comply with personal data protection legislation. They provide concrete answers, illustrated with examples, to the legal and technical issues involved in applying the RGPD to AI.
In particular, these recommendations make it possible to determine the applicable legal regime, define a purpose, determine the legal qualification of the actors, define a legal basis, carry out tests and verifications in the event of data re-use, carry out an impact analysis if necessary, take data protection into account right from the system design stage, and take data protection into account in data collection and management.
These official recommendations are available in 7 sheets. Over the coming months, the CNIL will be supplementing these initial recommendations with other sheets covering, in particular, the legal basis for legitimate interest, rights management, information for data subjects, annotation and security during the development phase. This work will also be submitted for public consultation.
FIRSH Tip: Firsh supports its clients developing AI tools in all compliance actions, taking into account CNIL recommendations. Keeping abreast of the latest developments.
✨ NEW TECHNOLOGIES ✨
➡️ Disclosure of an infringement action to a host = denigration!
Établissement G continued to use the New Man trademarks on the Internet even though it was no longer contractually authorized to do so under the terms of the license granted to it. Subsequently, Belle Étoile sent a letter to the host of the site on which the infringing products were marketed, informing it that sales of New Man products were being made in violation of its rights.
Établissement G accused Belle Étoile of committing acts of disparagement, which can be found when the information disclosed is of such a nature as to discredit, unless the information in question relates to a subject of general interest and has a sufficient factual basis, and provided that it is expressed with a certain degree of moderation.
In this case, the judges noted that the letter from Belle Étoile, although it did not expressly disclose the identity of Établissement G, was likely to discredit the products it marketed, since the details given in the letter made it possible to identify the origin of the disputed products. Secondly, they pointed out that the letter sent by Belle Étoile disclosed the proceedings initiated before the final decision of the judge.
However, the judges considered that disclosing to the host of a website an infringement action that had not yet given rise to a court decision, and asserting without caution or measure that the products marketed by a competitor on this site constituted an infringement, were also likely to discredit the products marketed by Etablissement G and constituted an act of wrongful denigration, even if the facts had subsequently been proven and the information had been disclosed to the sole host within the framework of the notification provided for under article 6 of the LCEN law, such disclosures having led to the closure of the site. As a result, the ruling held that the acts of disparagement against Belle Étoile were well-founded.
FIRSH Tip: it is always recommended watching one’s facts and acts of communication as long as a dispute is in progress between parties and has not yet been the subject of a final decision so that it is subject to appeal.
Recently, FIRSH obtained a conviction for disparagement against a company which had brought an infringement action against the defendant, and which had disparaged the defendant’s products to common customers during the proceedings, prior to any judicial conviction.
Cour d’appel de Paris, Pôle 5, Chambre 2, Arrêt du 26 avril 2024, Répertoire général nº 22/12176
✨ PERSONAL DATA ✨
➡️ CNIL comments on the Olympic pass system
On April 25, 2024, the CNIL issued its comments on the text instituting a laissez-passer in “security zones” where traffic will be restricted due to the organization of the 2024 Olympic and Paralympic Games. Accordingly, it accepted the legitimacy of the scheme, while issuing observations on the use of photography and data retention periods.
In particular, the processing of the following personal data will be authorized: the photograph, the proof of access, the copy of identity documents (national identity card, driving license, passport or residence permits), as well as the copy of the vehicle registration certificate.
The CNIL has indicated that copies of national identity cards, driving licenses, passports and residence permits should only be kept for the time required to issue the access document. Other data could be kept for three months. The CNIL also considered that, while the collection of photographs could be justified in view of the scale of the checks to be carried out during the games period, it should be limited to events of this scale.
In addition, for people wishing to gain access to establishments and facilities hosting a major event, an administrative inquiry should be carried out before access is authorized. Spectators will not be concerned by these specific inquiries, nor will people wishing only to access other places or buildings in the area, notably homes or businesses unrelated to the event.
✨ INTELLECTUAL PROPERTY ✨
➡️ Infringement of the reputation of the Louis Vuitton trademark despite its parodic nature: “Pooey Puitton”.
MGA Entertainment Inc. filed a European Union trademark application for “Pooey Puitton” in 2018, and used the sign commercially in a sequence of alternating floral motifs on a white background, similar to the figurative motifs of the Louis Vuitton figurative trademark, for children’s games.
The judges considered that this use of the sign in business life was likely to take undue advantage of the exceptional reputation and highly distinctive character of Louis Vuitton’s trademarks. The difference in sectors – luxury leather goods on the one hand, mass-market toys on the other – did not prevent the transfer of reputation.
In fact, MGA Entertainment Inc, which indicated that it was taking advantage of a nod to the Louis Vuitton trademark and, above all, of the parodic nature of its registration, would nevertheless have tried to place itself in the wake of the renowned trademark in order to benefit from the power of attraction of the reputation and prestige of the Louis Vuitton trademarks among the average consumer of Pooey Puitton products, the reputation and prestige of the Louis Vuitton brands and to exploit, without financial compensation and with the purely commercial aim of facilitating their sales, the commercial effort made by Louis Vuitton to create and maintain its image. In this case, the average consumer was to be understood as the normally informed and reasonably attentive consumer, i.e. mainly an adult who buys toys.
No parody exception, specific to copyright, was retained. Thus, turning the Louis Vuitton signs into a playful or mocking sign cannot be construed as a simple denunciation addressed to adults of the harmful excesses of consumer society.
FIRSH tip: companies are strongly advised to obtain the prior opinion of an intellectual property expert before proceeding with the use of a sign similar to a reputed or well-known trademark on the market.
TJ Paris, 3e ch., 1re sect., 25 avr. 2024, n° 19/01735
✨ NEWS « FIRSH » ✨
Firsh’s awards
In just one year, Firsh has entered the Décideurs 2023/2024 ranking of business lawyers in the following areas of expertise:
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Highly recommended
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Innovation, technology & telecoms – IT, software & digital projects – Ranking 2024 – Law firm – France
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Innovation, technology & telecoms – Digital Platforms Law and Applications – Ranking 2024 – Law firm – France
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Innovation, technology & telecoms – Data Protection Law and Cybersecurity – Ranking 2024 – Law firm – France
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Intellectual property – Trademark litigation – Ranking 2024 – Law firm – France
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Read more about Firsh’s contributions to the advancement of law and innovation:
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Claire Poirson took part in the BFMTV Business program “Tech&Co” hosted by Frédéric Simottel, on the subject of “Regulation, compliance, technology, talent: what’s missing in cyber today?”.
Claire Poirson shared her legal expertise in cybersecurity and spoke alongside Guillaume Tissier – CEO of the InCyber Europe Forum, Laurent Hausermann – Founder and CEO of CyGO Entrepreneurs and Benoît Grunemwald – Cybersecurity expert at ESET France.
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Participation of Claire Poirson in the TV5MONDE program hosted by Nina Soyez, to provide her expertise on the open banking aspect of the new Canadian federal regulations.
In April, Firsh assisted clients with the following projects:
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Drafting of contractual documentation for an AI-based e-learning start-up in the field of educational assistance
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Application of the European regulation on AI to a client operating in the field of facial recognition
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Support for a luxury brand in its efforts to remove fraudulent and malicious customer reviews on Google
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Pre-litigation relating to trademark infringement and unfair competition in the field of AI-based software developed for calls for tenders
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