Brussels IP and Tech Update - October 2022
In this October 2022 edition, we bring you an update of the most relevant ongoing initiatives in the IPT sector. We discuss the new EU proposals for the Cyber Resilience Act and product and AI liability, the new Agoria Digital Index, the new licensing regime for satellite frequencies, our new edition of Law à la Mode, EUIPO’s and BOIP’s approach to classification of trademark applications relating to NFTs and virtual goods in the metaverse and the upcoming Belgian repair index.
EU proposal for a Cyber Resilience Act
This proposal was submitted on 15 September 2022 and regulates the cybersecurity requirements for products with digital elements (hard- and software). The main concern is the increasingly (successful) cyberattacks against which this regulation would take measures, like the creation of a coherent cybersecurity framework and ensuring that manufacturers have to improve the security of products with digital elements. Get more information about this proposal and its scope here.
EU proposals regarding product and AI liability
Two proposals were submitted on 28 September 2022 to adapt liability rules to today's world. The first proposal revises the Product Liability Directive to modernise liability rules for circular economy businesses and for digital products (eg cybersecurity vulnerabilities), to create a level playing field between EU and non-EU manufacturers, and put consumers on a more equal footing with manufacturers in terms of evidence and claims handling. The second proposal introduces an AI Liability Directive which purports to lay down uniform rules regarding access to information, the burden of proof (introducing a presumption of causality), and claims handling, which would also apply in cases where claims would fall outside the scope of the Product Liability Directive. Find out more about this proposal and its scope here.
The new Agoria Digital Index
Inflation is noticeable in all sectors and many technology companies are feeling the impact of rising labour costs. Nowadays, many technology contracts already contain price review clauses allowing agreed fees to be indexed annually, in particular in the case of consulting services or other services invoiced on a time-and-expense basis. Many Belgian law governed agreements refer to the (old) index published by technology federation Agoria, which has recently published a new Agoria Digital index. The objectives of the new Agoria Digital index are to better track labour cost evolution and inflation in the digital sector, to create more transparency and reduce the number of index variants and to offer a starting point for contract adjustments. More information on this new Agoria Digital index (in Dutch or French) can be found on the Agoria-index and FAQ have also been published.
Challenges and opportunities in the fashion and retail sector
In the 34th edition of Law à la Mode, DLA Piper colleagues from across jurisdictions have worked in collaboration to bring you articles to address the most topical challenges and opportunities that the fashion and retail sector are currently facing. This edition also contains two articles from our own IPT team. “Driving fast fashion out of fashion: How the EU plans to reform the textile sector by 2030” focuses on the European Commission’s long-awaited EU Strategy for Sustainable and Circular Textiles. In “Protection of fashion style names,” we examine whether a fashion brand can protect a style name under EU trademark legislation and, more importantly, whether the use of this sign as a style name would lead to an infringement if it’s already trademark protected by a third party. Read the full edition here.
New general authorization for the use of satellite frequencies
In its recently published decision of 19 July 2022, the Belgian regulator (BIPT) broadened the general authorization regime for radio interfaces used by satellite earth stations. Many frequencies used by satellite earth stations are now included under the scope of this broadened general authorization regime and are no longer subject to individual licenses. Find more information about the Belgian licensing regime on the BIPT’s website.
A Belgian repair index for electronic devices?
The federal government has recently announced its plans to implement a Belgian repair index for electronic devices. By means of a mandatory score or Repair Index that must be listed on electronic devices and that indicates the repairability of the product, the government hopes to promote the repairability of these products and to take a step towards a more circular economy. It would apply to the same categories of products as in France, namely smartphones, laptops, washing machines, televisions, and electric lawnmowers, with the exception that in Belgium bicycles would also be targeted by the index. The proposal has not been made public yet, but we are eagerly waiting its arrival so we can inform you about the possible consequences for your company. You can find further information on this subject here.
Interim judgement of the Market Court with referral of prejudicial questions to the European Court of Justice
On 7 September 2022 the Belgian Market Court issued an interim judgement in the IAB Europe case to refer prejudicial questions to the European Court of Justice. The prejudicial questions are about the concept of data controllership in the GDPR and how it is to be interpreted in this case and whether a TC String (a digital signal containing user preferences) can be considered “personal data” under the GDPR. The answers to these questions could prove very interesting. A final decision of the Market Court can be expected at the end of 2023 or even 2024.
Protection of NFTs and virtual goods and services in the Metaverse
With the rise of the metaverse and non-fungible tokens (NFTs), we notice that brand owners are also looking to secure trademark protection for their virtual goods and non-fungible tokens. The European Intellectual Property Office (EUIPO) has issued guidelines on its approach of the classification of such virtual goods, NFTs and related services. Subsequently, The Benelux Office for Intellectual Property (BOIP) has aligned its practice with that of EUIPO.
Open source software issues in M&A transactions
As open source software becomes more popular, it’s important to know what the licenses to use this software include. The phrase “open source” often misleads users into believing they have broad scope to do whatever they wish with the source code of the open source. This is not the case, and accordingly organisations should be acutely aware of the licences they are interacting with when building software or acquiring assets containing proprietary software, and how they can take steps to mitigate legal and commercial risk and ensure compliance. Find out more about this subject here.
New Global Guides
Since our last newsletter, no less than three new global guides have been published. The first one, the “DLA Piper Advertising Laws of the World Guide,” gives a comprehensive overview of advertising laws in 13 key jurisdictions. The second one, the “DLA Piper Gambling Laws of the World Guide,” provides a similar overview of gambling laws in 30 jurisdictions. “The DLA Piper Global Sourcing Laws Guide” and portal describes the different outsourcing regimes and is available on our renewed outsourcing portal, where you can find all our relevant technology and sourcing tools. Further information about these guides and where to find them is provided below.