Innovation Law Insights

Legal Break

Why do most AI investments fail to deliver business value?

Eighty-two percent of companies are investing in AI. But 81% aren’t seeing a tangible impact on their business. This gap isn’t about technology – it’s about governance, legal structuring, and the inability to scale AI in a compliant way.

In the latest episode of Diritto al Digitale, Giulio Coraggio of DLA Piper explores why most AI initiatives fall short of expectations and how regulatory frameworks such as the AI Act are becoming a key differentiator between experimentation and competitive advantage.

You can listen to the episode here.

 

Data protection and Cybersecurity

Tracking pixels in emails: Italian Garante’s guidelines and a comparison with the CNIL Recommendation

On 17 April 2026, the Italian Garante for the Protection of Personal Data adopted the Guidelines on the use of tracking pixels in email communications (Provision no. 284, available here), currently pending publication in the Official Gazette.

Around one month earlier, on 12 March 2026, the French CNIL had adopted its own Recommendation on the same subject (available here), following a public consultation launched in June 2025.

Two acts of different legal nature – the first binding, the second orientative – that converge on the same regulatory need: to bring tracking pixels in emails within the framework of guarantees provided by the e-Privacy Directive and the GDPR, putting an end to a grey area that had until now allowed their near-indiscriminate use.

The legal nature of tracking pixels and the applicable regulatory framework

Tracking pixels are infinitesimally small images, not embedded directly in the body of an email but hosted on remote servers. When the recipient opens the message, an HTML code automatically triggers an HTTP request to the sender’s server: the image is downloaded and stored in the memory of the recipient’s device, without the recipient perceiving anything. The sender, on the other hand, acquires a set of information that may include confirmation of the email having been opened, the IP address, the device type, the time of consultation and the number of subsequent re-openings.

This sequence constitutes, from a legal standpoint, a dual operation: the storage of information on the user’s device (the insertion of the pixel in the email) and the subsequent access to information already stored (the detection of the user’s behaviour via that pixel). Both operations fall within the scope of Art. 122 of the Italian Privacy Code – the provision transposing Art. 5.3 of the e-Privacy Directive – and of the corresponding Art. 82 of the French Loi Informatique et Libertés, as confirmed by the EDPB Guidelines 2/2023 on the technical scope of Art. 5.3 of the Directive.

It follows that the e-Privacy Directive applies as lex specialis with respect to the GDPR, which remains applicable as the general regulatory framework for all aspects not specifically governed by the Directive. From the perspective of legal bases, this normative architecture has a decisive practical implication: legitimate interest is excluded from the legal bases available for terminal access operations, which may rely exclusively on the data subject’s consent or on one of the exemptions expressly provided for by the relevant provision.

The actors involved and the qualification of roles

The correct qualification of the actors involved in the use of tracking pixels is an indispensable preliminary step, on which both the Garante and the CNIL dwell in some detail, albeit with differences in approach.

The Garante’s position

The Garante identifies the following actors, specifying that the qualification of each one’s role must be assessed on a case-by-case basis in accordance with the accountability principle under Art. 5(2) GDPR, taking into account the possible application of the joint controllership rules under Art. 26 GDPR.

• Email sender: the subject – public or private – who decides to send the communications and determines the purposes for which the pixels are used. It’s the data controller, regardless of whether the operational management is entrusted to third parties.
• Email service provider: the subject that makes the technical solution available to the client – often in SaaS mode – for managing campaigns, from sending messages to monitoring performance. It generally acts on the instructions of the sender and its natural role is that of data processor under Art. 28 GDPR.
• Mailing list rental service provider: distinguished from the above in that it autonomously and fully manages the sending of communications to contacts on its own lists, offered for rental to the client. The degree of operational autonomy may, depending on the contractual arrangements, support a qualification as independent controller or joint controller.
• Tracking technology provider: the subject that makes available exclusively the technical tool used for tracking. The Garante specifies that its role must also be assessed in relation to any participation in decisions concerning the processing: where it uses data collected via the pixels for its own purposes, joint controllership under Art. 26 GDPR may arise.
• Message recipient: the data subject on whose device the pixel is installed. The Garante distinguishes between cases where the email address was obtained following an authentication process and cases where it was collected in another way – for example in the course of a commercial transaction, relevant also for the potential application of the soft spam exemption under Art. 130(4) of the Privacy Code.

The CNIL’s position

The CNIL identifies five categories of actors, with a more systematic qualification and certain clarifications that have no explicit counterpart in the Italian Guidelines.

• Email sender (expéditeur du courriel): qualified as data controller. The CNIL specifies that where the sender contractually accepts read/write operations carried out by third parties within the emails it has requested to be sent, it will in principle also be joint controller of those operations – since the purposes and means are in that case determined jointly – even though subsequent processing operations may fall under the independent responsibility of each party.
• Email service provider (prestataire de service d’emailing): qualified as data processor, mirroring the Italian position, as it acts on behalf of and according to the instructions of the sender.
• Mailing list rental service provider (prestataire de services de location de listes de diffusion): requires a case-by-case analysis. When it integrates tracking tools to provide information to its client as controller, it acts in principle as data processor. Joint controllership may instead arise where the provider uses the pixels for its own purposes – for example to improve the relevance of its lists or deliverability – and the client has contractually accepted such operations. In that case, the CNIL expressly invokes Art. 26 GDPR, emphasising the need for a clear and transparent allocation of obligations, particularly with regard to information notices and the exercise of data subjects’ rights.
• Tracking technology provider (fournisseur de la technologie de suivi): qualified as data processor where the operations are carried out exclusively on behalf of the sender. It becomes joint controller where data collected via the pixels are also used for the provider’s own purposes – for example to improve the technical solution provided – and the client has contractually accepted the operations.
• Mailbox / email service provider (fournisseur de service de messagerie): a figure not expressly mentioned by the Garante. The CNIL clarifies that, although an indispensable technical actor, the mailbox provider doesn’t directly intervene in the processing linked to the use of pixels. It may technically influence their operation – for example by blocking automatic image loading – but, insofar as it doesn’t use the data generated by the pixel, it’s neither controller nor processor.

Exemptions from consent: The main point of divergence

The central issue concerns identifying the purposes for which processing can be carried out without the prior consent of the data subject. This is the point on which the two authorities diverge most significantly.

The Garante identifies three exemption categories.

The first concerns anonymised aggregate statistics on email open rates, on condition that the data is effectively anonymised: the pixel must be identical for all recipients of a campaign – and therefore not differentiated per individual user – and the related technical data, including the IP address, must be anonymised in the rigorous sense elaborated by the WP29 in Opinion 05/2014.

The second exemption concerns security measures connected to user authentication, such as verifying that an email containing an OTP code or an account activation link is opened on the device attributable to the relevant user.

The third – and broadest – exemption covers institutional or service emails that the controller is legally obliged to send and in respect of which the recipient’s actual acknowledgment is relevant: this includes, by way of example, banking communications required by sector-specific regulation, security incident notifications, communications concerning contractual amendments, deadline reminders and institutional information campaigns.

The CNIL adopts a narrower scope of exemptions, structured around two categories only.

The first coincides with the Italian authentication exemption. The second concerns the individual measurement of email open rates for deliverability purposes, but under particularly strict conditions: the processing must be strictly limited to what is necessary to adapt the sending frequency or stop sending to inactive recipients, with retention of only the date of the last opening – without recording the time – updated at each new opening with deletion of the previous one. The third Italian category, relating to institutional emails in the broad sense, has no counterpart in the French Recommendation, which merely mentions emails sent by public authorities in the exercise of a public service mission.

Consent collection: Simplification versus granularity

Where consent is required, the two authorities take partially divergent approaches as regards the modalities of collection.

The Garante favours a simplification-oriented approach: consent to the use of pixels can be bundled with the general consent to receive commercial communications, provided the request is formulated in a neutral manner, free from undue pressure, and the data subject has been duly informed beforehand. The rationale is to avoid consent fatigue – the saturation arising from multiple and redundant consent requests that, paradoxically, ends up reducing rather than increasing data subjects’ awareness.

The CNIL, while admitting the possibility of a single consent for closely connected purposes – for example, processing for personalised commercial prospecting and the use of pixels that directly contribute to that personalisation – requires separate and independent consents for distinct and unconnected purposes. The approach is more granular and requires a careful analysis of the purposes actually pursued in each campaign.

On one point both authorities converge clearly: the inactivity of the recipient cannot in any case be equated with consent; the latter has to derive from a positive and unambiguous act by the data subject.

Granular withdrawal: A distinctive feature of the Italian Guidelines

One of the most innovative elements of the Garante’s provision is the express recognition of the right to granular withdrawal of consent. The data subject must be able to choose not only between accepting or rejecting the processing as a whole, but also – and this is the novelty – to continue receiving commercial communications while opting out of pixel tracking only. The mechanism must be implemented in the footer of every email, via a standardised icon or a link leading to a dedicated area for the exercise of rights, where the user may opt for the cessation of mailings or for the sole deactivation of tracking.

The CNIL also requires an accessible withdrawal mechanism via a link in the footer of every message, but doesn’t elaborate with the same intensity on the dimension of granularity between consent to the email and consent to the pixel as an autonomously exercisable right of the data subject.

Privacy by design: The Garante’s technical guidance

The Italian Guidelines stand out for the specificity of the technical indications provided in implementation of the privacy by design and by default principle under Art. 25 GDPR. The Garante suggests that the sender generate, for each recipient, a non-sequential and unintelligible identifier to be associated with the email address in a separate internal layer of the platform used. In this way, the counting of openings occurs via the identifier, without the recipient’s email address travelling in the technical request generated by the pixel loading, reducing the risk of identifiability of the data circulating on the network.

The CNIL Recommendation doesn’t elaborate equivalent technical detail on this point, preferring to refer to the general data minimisation principle under Art. 5.1(b) GDPR.

Information obligations

Both authorities confirm the obligation to provide prior information notice on the part of the controller, regardless of the type of email sent and the nature – public or private – of the sender. The notice can be structured on multiple levels, with a summary at the first level and a reference to more detailed content, and may be conveyed through different channels.

For processing already underway when the respective provisions enter into force, both authorities allow the information notice to be provided with the first subsequent useful sending, without the need to interrupt ongoing campaigns.

Compliance deadlines

The Garante gives six months from publication in the Official Gazette, acknowledging the potential complexity of the technical and organisational adjustments required. The CNIL sets a shorter deadline of three months from the publication of the Recommendation (which took place on 12 March 2026), providing that for email addresses already in use it’s sufficient, within that deadline, to send a clear and accessible information notice to recipients, enabling them to object to tracking for future communications.

Conclusions

The near-simultaneous adoption of these two provisions by the Italian and French authorities reflects a shared underlying convergence in the legal qualification of tracking pixels as terminal access tools subject to the e-Privacy Directive, and in the consequent application of the consent regime provided for by the respective national transposing provisions. The divergences concern essentially the scope of the exemptions – broader in the Italian approach, more restrictive in the French one – and the degree of proceduralisation of consent collection modalities, on which the CNIL proves more analytical.

For controllers operating in both jurisdictions, the most prudent operational choice is to calibrate their systems on the more restrictive regime applicable on a case-by-case basis, paying attention to the differences concerning individual deliverability tracking and granular consent. The six-month deadline granted by the Garante allows for a reasonable compliance window, but the complexity of the technical interventions required – from the revision of emailing platforms to the implementation of granular withdrawal mechanisms – makes it advisable to initiate the process without delay.

Author: Enila Elezi

 

New determinations from the Italian NIS2 Authority: What’s changing?

The National Cybersecurity Agency (ACN) has published on its institutional website two new determinations marking the transition to the second phase of implementation of the NIS regulatory framework: ACN Determination No. 127434/2026, which sets the deadlines for compliance obligations for entities included in the NIS list for the first time during 2026, and ACN Determination No. 127437/2026, which updates the rules governing the use of and access to the Agency’s digital platform, introducing the obligation to identify relevant suppliers.

New deadlines for entities included in the NIS list in 2026

Determination No. 127434/2026 defines the compliance timetable for organisations included for the first time in the NIS list during 2026, setting the following deadlines with regard to the obligations arising from the determination on baseline requirements (ACN Determination No. 379907/2025):

• the security measures set out in Annexes 1 and 2 to Determination No. 379907/2025 must be implemented no later than 31 July 2027;
• the notification of significant incidents referred to in Annexes 3 and 4 of the same determination will become mandatory as of 1 January 2027, with the consequent requirement for the entities concerned to designate a CSIRT Contact Point by the end of 2026.

A specific regime applies to top-level domain name registry operators and domain name registration service providers included in the NIS list in 2026: for these entities, the obligations referred to in Article 4(1) of Determination No. 379907/2025 must be fulfilled by 31 July 2027.

Identifying relevant suppliers and the ACN platform

Determination No. 127437/2026 revises the rules governing the use of and access to the Agency’s digital platform and, with the introduction of new Article 18, includes among the annual information update obligations the identification of NIS-relevant suppliers. The aim is to identify, within the supply chain, those entities that may qualify as important or essential, increasing the overall level of cybersecurity throughout the value chain, in line with Article 3(9)(f) of the NIS Decree.

A supplier is considered relevant where it provides goods or services to an NIS entity and falls within at least one of the following scenarios:

• the service provided falls within the categories of activities or services listed in points 8 and 9 of Annex I to the NIS Decree (by way of example, provision of internet exchange points, DNS services, management of top-level domain name registries, cloud computing, data centres, managed services and managed security services);
• the unavailability or compromise of the service would have significant effects on the NIS entity’s ability to continue to provide the activities or services for which it falls within the scope of the regulation, including due to the absence of adequate alternative solutions.

Further novelties concern Articles 20 and 21 of Determination No. 127437/2026, which define the procedural aspects of the listing and categorisation of activities and services provided for under Article 30 of the NIS Decree. This obligation requires the contact points of organisations subject to the NIS Decree to describe the full set of activities and services of the NIS entity and to assign to each the corresponding relevance category, in accordance with a model to be defined by ACN through a dedicated determination.

In the coming days, ACN is expected to publish the determination setting out the categorisation model, accompanied by guidance materials designed to support entities in carrying out the Business Impact Analysis (BIA) during May and June, based on a simplified framework already shared within the sectoral working groups. At the same time, ACN has announced an update to the NIS section of its institutional website to reflect the innovations introduced by the two measures.

Author: Gabriele Cattaneo

 

Intellectual Property

‘Miss Italia’: Balancing trademark protection and artistic defence

The Rome Court has rejected the interim proceedings brought the organisers of the Miss Italia beauty pageant against the use of the term as the title and title track of the latest album by Ditonellapiaga, an Italian singer-songwriter who recently competed at the Sanremo Music Festival with Che fastidio!

The applicant alleged infringement of its exclusive trademark rights, invoking the protection afforded by Article 20 of Legislative Decree No. 30/2005 (the Industrial Property Code, IPC). In dismissing the application, the court systematically examined all three scenarios under Article 20 IPC, excluding their applicability, and devoted particular attention to the balancing between the protection of a well-known trademark and the artistic defence.

The ‘Miss Italia’ dispute

During the Sanremo Music Festival, following the announcement of the forthcoming release of Ditonellapiaga’s album “Miss Italia,” the company holding the trademarks “Miss Italia” and “Concorso Nazionale Miss Italia” filed an urgent application, seeking to enjoin the release of the album, scheduled for 10 April. The applicant also challenged the album cover, depicting the artist wearing a crown traditionally associated with the winner of the beauty pageant, as well as the use of the trademark as the title of one of the album’s tracks. The court was asked to order the respondents to cease the production, distribution, commercialisation and promotion of the album, the withdrawal from the market of any copies already sold, and the removal of the title from digital platforms.

The respondents argued that the expression “Miss Italia” had been used in a purely descriptive capacity, through an ironic and self-deprecating register, without exceeding the boundaries of proportionality and formal correctness.

The Court of Rome’s ruling

In rejecting the application, the court examined each of the three forms of protection provided under Article 20 IPC and excluded their applicability.

With regard to Article 20(a) IPC, which prohibits the use of a sign identical to a registered trademark for identical goods or services, the court found that the requirement of identity between the registered trademark and the contested sign was not satisfied. The “Miss Italia” trademark is a composite mark, consisting of both verbal and figurative elements: a stylised female profile wearing a crown, a diagonal stripe, and specific colours. The album title, by contrast, consists solely of two words, rendered in a different typeface, in a single colour (yellow), and without any additional graphic elements. The court concluded that the descriptive and figurative elements of the registered trademark weren’t reproduced in the album title. Moreover, the two signs operate in entirely distinct market sectors, with no overlap whatsoever.

As regards Article 20(b) IPC, which prohibits the use of an identical or similar sign for related goods or services where there is a likelihood of confusion, the court found that the applicant had failed to file sufficient evidence to establish any affinity or similarity between the respective sectors, namely, the organisation of beauty pageants and the music industry. Notably, the trademark registration in question covers numerous categories of goods and services, including jewellery, cosmetics, clothing and foodstuffs, but makes no reference to the music or recording industry. In view of the overall difference of the relevant market sectors, the court excluded any likelihood of confusion between the registered trademark and the use of the expression “Miss Italia” as an album title.

Case law cited by the court in support of its ruling has already clarified, in similar cases, that the ironic or parodic evocation of a well-known trademark in a musical context doesn’t give rise to a likelihood of confusion, since the average consumer in the recording industry is deemed sufficiently discerning to immediately grasp the nature and purpose of the creative operation. In similar cases, it’s been held that the use of a sign on an album cover in a parodic manner neither prejudiced the position of the trademark holder nor conferred any undue commercial advantage to the third-party user (Court of Milan, decision of 31 December 2009, Deutsche Grammophon case).

In this case, this reasoning is further reinforced by the consideration that the composite trademark “Miss Italia” is by its very nature primarily associated with the beauty pageant sector and its related promotional activities, whereas the use of the same expression as an album title is directed at an entirely different audience and serves a descriptive function in relation to the content of the work. According to the court, there’s no connection or overlap between the two fields, rendering any likelihood of confusion on the part of the relevant public effectively impossible.

A well-known trademark and the limits of the artistic defence

The court’s analysis focused primarily on the scenario set out in Article 20(c) IPC, which provides enhanced protection for the holder of a registered trademark where third parties make use of an identical or similar sign even in non-related sectors. The conditions for invoking such protection are, in addition to the trademark being well-known, in the sense that it’s widely recognised by the relevant public, that the use confers an unfair advantage on the third party or causes detriment to the trademark holder, and the absence of a legitimate reason justifying such use.

The Court of Rome acknowledged that the “Miss Italia” trademark enjoys a well-established reputation, and it is highly distinctive. However, the applicant failed to satisfy the burden of proof with respect to the advantage that the respondents might derive from the use of the expression “Miss Italia,” or the unjustified harm caused to the applicant’s image and reputation. The court held that such elements cannot be presumed to exist in re ipsa merely on the basis of the trademark’s notoriety.

Even leaving aside this evidentiary gap, the court held that the legitimate reason referred to in Article 20(c) IPC, capable of justifying the use of a well-known trademark by a party other than its holder, was established in the case at hand, using the artistic defence. In these circumstances, the party using the trademark was not placing a mere product or service on the market, but rather making her musical work available to the public.

The trademark holder’s right to exclude third-party use must be balanced with the freedom of artistic expression, protected under Article 21 of the Italian Constitution, Article 11 of the Charter of Fundamental Rights of the European Union (Nice, 2000), and Article 10 of the ECHR. A balance must be struck between competing interests of constitutional standing: on the one hand, the right of industrial property; on the other, freedom of artistic expression.

According to the Court of Rome, the title of a musical album doesn’t perform the typical function of a trademark, that is, distinguishing the goods or services of one company from those of another, but rather serves to identify and describe a work in its individuality. The choice of title is an expression of the author’s artistic vision, and may legitimately draw on evocative, ironic or critical expressions, or references to widely recognised cultural symbols that capture the essence of the album’s content. As documented by the respondents, the use of signs similar to or evocative of well-known trademarks in song lyrics, track titles and album titles is an established practice in the music industry, constituting a legitimate exercise of the artistic defence.

In this case, the court found that the use of the expression had descriptive rather than promotional purposes. Based on an analysis of the lyrics of the track entitled “Miss Italia,” the album cover, depicting the artist herself, and the other materials filed before the court, the reference to “Miss Italia” was directed not at the commercial trademark or the beauty pageant as such, but rather at a particular “type of woman” associated with the pageant’s winners, conveyed through a register that’s critical, appreciative, evocative and ironic.

The use of the trademark falls within the exercise of the artist’s freedom of expression, inflected with self-irony and grounded in the right of criticism. From this perspective, the expression employed cannot be replaced by alternative formulations without compromising the author’s communicative intent. It follows that such use constitutes a manifestation of expressive freedom which, provided it meets the requirements of proportionality and formal correctness, cannot be censured, as it’s an exercise of the right to free expression of thought under Article 21 of the Italian Constitution.

Trademark protection and creativity: An evolving balance

Notwithstanding the “Miss Italia” organisers’ announced intention to challenge the decision, this ruling makes a significant contribution to the ongoing debate on the boundaries between the protection of well-known trademarks and freedom of artistic expression. The reputation of a trademark, however well-established, doesn’t constitute an absolute limit: even the most celebrated signs may yield to uses that are artistically motivated, provided they’re proportionate and commercially fair. A trademark holder cannot rely solely on the mark’s notoriety to secure protection but must specifically demonstrate the unfair advantage gained by the third party or the detriment suffered by its own reputation.

Conversely, a party invoking the artistic defence when referencing a well-known trademark may not do so indiscriminately: a thorough, case-by-case assessment is required to verify that the use of another’s sign is genuinely in the service of creative expression and doesn’t conceal purely commercial or promotional purposes.

This decision takes its place within an interpretive trend that seeks to strike a balance between the imperatives of industrial property protection and the creative freedoms that define the music industry.

Author: Chiara D’Onofrio

 

UPC and long-arm jurisdiction: The first preliminary referral to the Court of Justice

The issue of the UPC’s long-arm jurisdiction has been widely debated since the system became operational.

Just over a year ago, in the case BSH v Electrolux, the EU Court of Justice helped clarify the scope of application of Article 24(4) of the Brussels I bis Regulation. That decision has had significant repercussions with regard to the jurisdiction of the UPC over the infringement of portions of European patents validated in countries not party to the UPCA.

Following the CJEU’s ruling, the UPC developed a significant body of case law which has, to a large extent, confirmed the existence of jurisdiction of the Unified Patent Court in relation to acts of infringement committed in non-UPCA states where the defendant is domiciled in a member state. At the same time, UPC jurisdiction has been affirmed over parties domiciled in third countries where they’re sued together with an “anchor defendant,” namely a party domiciled in a state participating in the UPCA.

Not all questions have been resolved, however, and the boundaries of UPC jurisdiction remain partly uncertain to this day. This is confirmed by the fact that on 6 March the UPC Court of Appeal issued the first preliminary reference to the Court of Justice of the European Union since the system became operational, precisely to further clarify the contours of long-arm jurisdiction.

The proceedings that gave rise to the preliminary reference were initiated at first instance before the Hamburg Local Division by a company active in the technology and home appliances sector, owner of a patent relating to hair styling technology, against a Chinese competitor and several of its affiliates. A German-based company was also sued, acting in a regulatory capacity as the Chinese manufacturer’s authorised representative in the EU, serving as a point of contact between the latter and consumers.

Among the claims brought by the claimant was also a request for an injunction with effect extended to all UPCA member states, and to Spain. The Local Division partially upheld the claimant’s requests, granting the injunction, including with regard to Spanish territory, against both the Chinese company and its authorised representative in the EU.

Both defendants appealed the decision, which was also challenged by the claimant insofar as it had not recognised infringement in relation to certain product models at issue.

The Court of Appeal dismissed the defendants’ appeal and upheld the patent holder’s appeal, extending the injunction to additional products involved in the dispute.

At the same time, however, in a separate decision, it stayed the proceedings insofar as they concern acts committed by the Chinese manufacturer in Spain and the position of the EU-authorised representative, referring four questions to the CJEU for a preliminary ruling.

The first question concerns the interpretation of Article 8(1), in conjunction with Article 71(b)(2) of the Brussels I bis Regulation. In essence, the CJEU has been asked whether a court common to several member states (in this case, the UPC) can establish jurisdiction over a company established in a third country, with regard to infringement of the national portion of a European patent in an EU member state that hasn’t joined the instrument establishing the common court, by “anchoring” it to jurisdiction existing with respect to a co-defendant established in a member state participating in the instrument and acting as an intermediary, on the assumption that separate proceedings could result in irreconcilable judgments.

With the second question, the court has asked whether the UPC may adopt provisional measures against a party established in a third country directly on the basis of Article 71(b)(2), second paragraph, of the Brussels I bis Regulation, where the same products, allegedly infringing the patent, are marketed both in states participating in the instrument establishing the common court and in EU member states that aren’t participating, through essentially identical websites differing only in the language used.

With the third question, the court asks whether the fact that the party established in a third country uses the services of a company established in an EU member state participating in the instrument establishing the common court to commit the infringement constitutes a relevant factor for answering the second question.

Finally, with the fourth question, the court asks whether an authorised representative in the EU, solely by virtue of its role, can be classified as an “intermediary whose services are used by a third party to infringe an intellectual property right” within the meaning of Article 9(1)(a) of the Enforcement Directive (2004/48/EC).

We’ll have to wait for the ruling of the Court of Justice of the European Union, while observing in the meantime whether and to what extent the UPC will decide to extend its jurisdiction beyond the limits explicitly set out in the BSH v Electrolux judgment.

Author: Camila Francesca Crisci

 

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Innovation Law Insights is compiled by DLA Piper lawyers, coordinated by Edoardo Bardelli, Carolina Battistella, Noemi Canova, Gabriele Cattaneo, Maria Rita Cormaci, Camila Crisci, Cristina Criscuoli, Tamara D’Angeli, Chiara D’Onofrio, Federico Maria Di Vizio, Enila Elezi, Laura Gastaldi, Vincenzo Giuffré, Nicola Landolfi, Giacomo Lusardi, Josaphat Manzoni, Valentina Mazza, Lara Mastrangelo, Maria Chiara Meneghetti, Giulio Napolitano, Andrea Pantaleo, Deborah Paracchini, Maria Vittoria Pessina, Marianna Riedo, Rebecca Rossi, Roxana Smeria, Massimiliano Tiberio, Federico Toscani, Giulia Zappaterra.

Articles concerning Telecommunications are curated by Massimo D’Andrea, Flaminia Perna, Matilde Losa and Arianna Porretti.

For further information on the topics covered, please contact the partners Giulio Coraggio, Marco de Morpurgo, Gualtiero Dragotti, Alessandro Ferrari, Roberto Valenti, Elena Varese, Alessandro Boso Caretta, Ginevra Righini.

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