Patent attorney Prof Heinz Goddar – 23 February 2019
23 February 2019, Munich Host to the “7th Annual MIPLC Alumni Conference” To the website.
If you are interested in taking part of the event, please contact Professor Dr. Heinz Goddar.
23 February 2019, Munich Host to the “7th Annual MIPLC Alumni Conference” To the website.
If you are interested in taking part of the event, please contact Professor Dr. Heinz Goddar.
Patent lawyer and honorary president of UNION IP Nils T.F. Schmid will host the half-day round table event on 22 February 2019. The event will focus on “Smart IP – Applying intelligence to patenting, licensing and enforcing IP on new technology”.
The English-language workshop will take place in the German Patent and Trademark Office (Zweibrückenstrasse 12,80331 Munich). Confirmed speakers include: Prof Peter Georg Picht (University of Zürich), Dr Dominik Bauer (Audi AG), Georg Weber (European Patent Office) and many more.
Further details can be obtained from Nils T.F. Schmid.
Details on the event can be found here.
UNION IP of European Practitioners in Intellectual Property is an independent non-profit organisation of experts focused on intellectual property. It was founded in 1961 under the name “UNION of European Patent Attorneys”. It is active throughout Europe and offers IP experts a professional forum.
In case of an unregulated hard Brexit, the European Data Protection Law would also come down with full force: The United Kingdom would become, from one day to the next, a “normal” third country and would also be treated as such by the EU Data Protection Law. The transfer of personal data from the EU to the United Kingdom would only be legitimate if and as long as specific conditions are met.
The EU General Data Protection Regulation (GDPR) establishes a uniform level of data protection throughout the European Union which allows free data exchange within the EU: Since the same Data Protection Law (in principle) equally applies in all EU Member States, personal data may be transferred within the Union across the internal frontiers without any special requirements or conditions, as they are equally well protected in all Member States via the GDPR.
As soon as the United Kingdom leaves the European Union, it will become a third country from one day to the next. Under the GDPR, personal data may be transferred to a third country only if specific conditions are met, as described below.
If the Brexit is unregulated, i.e. without any special agreement between the Union and the Kingdom, the aforesaid also applies to the UK – immediately and directly, as of 29 March 2019 at 00:00 CET, without any grace period, as provided for in Art. 71 of the Draft Agreement of 14 November 2018 which was rejected by the House of Commons on 15 January 2019: It was planned therein that the GDPR should continue to apply to the UK until the end of 2020. For the time thereafter, a national UK Data Protection Law was to be established to provide essentially the same level of data protection in the UK as within the European Union.
In terms of data protection, an unregulated Brexit particularly affects the “remainers” in the EU, namely, the EU-based companies that wish to exchange data with UK-based companies. The EU companies are then so-called “data exporters”, and they therefore have to set the stage for data transfer that is compliant with EU data protection law. If the requirements are not met, data must not be transferred to the third country. If data are transferred nevertheless, the EU-based companies are committing a data protection violation. It is therefore in the direct interest of EU-based companies to comply with the GDPR requirements for transfers to third countries.
The goal of special provisions of the GDPR for exporting data to third countries is the best possible protection of personal data and the persons to whom they relate in the third country. Data transfer to a third country is permitted only if
In detail:
With regard to some third countries, the European Commission did confirm that an adequate level of data protection does exist in these countries. These include, inter alia, Canada, Japan, Switzerland and Israel., Personal data may be transferred to these countries without establishing additional safeguards.
With regard to the UK, however, there is no such decision, and it is unlikely that such a decision will be taken in the near future. In a notification of 14 November 2018, the Commission in this regard simply stated:
“(…) the adoption of an adequacy decision is not part of the Commission’s contingency planning.”
”The export of data to third countries may take place if the data exporter provides “appropriate safeguards” to ensure an adequate level of data protection. In particular, this includes the use of the so-called “Model Clauses” which were previously approved by the Commission. These Model Clauses are currently still applicable in principle, in modified form, but are not unchallenged. In fact, they are currently under review in the context of proceedings pending before the European Court of Justice. It cannot be ruled out that these Clauses may suffer the same fate as the Safe Harbour Agreement, which was declared invalid by the ECJ.
“Appropriate safeguards” also include binding corporate rules (BCR) within groups of undertakings, which, however, must be approved beforehand by the supervisory authorities.
The GDPR provides a number of “derogations for specific situations” in which a transfer of data to a third country is permitted even without an adequacy decision and without “appropriate safeguards”. This includes, in particular, the case where the data subject has explicitly consented to the proposed transfer after having been informed of the possible risks of such transfers. Personal data, as another example, may also be transferred to a third country if this transfer is necessary for the performance of a contract concluded with the data subject or concluded in his/her interest.
Whether the data transfer is covered by one of the derogations must always be carefully examined on a case-by-case basis.
It is important to keep in mind that ensuring compliance of the third country transfer alone is not sufficient; in addition, the obligation to provide information must be fulfilled. The data subjects must be given information about the intention to transfer personal data to a third country and also about how the adequate level of data protection will be ensured.
The GDPR is European Union Law and applies directly in all EU Member States. One would think that the GDPR therefore does not have any relevance for UK-based companies after the UK’s withdrawal from the EU. But this is not the case: Companies established in third countries are also fully subject to the rules of the GDPR if they offer goods or services to individuals in the Union and in this context process personal data of persons residing there. For example, a British online shop that offers and sells goods to the EU, is subject, without restrictions, to the rules of the EU Data Protection Law. The same applies where the behavior of individuals residing in the European Union is monitored out of the third country (e.g. via web tracking).
For such UK companies, the unregulated Brexit therefore means that they are subject to the strict EU data protection regulations due to their activities in the EU, but (being companies in a third country) no longer benefit from the principle of the free transfer of data.
The question whether and under what conditions the transfer of data to a third country is compliant with the GDPR concerns Stage 2 of the assessment of whether the personal data may be transferred from one body to another. Irrespective of whether the recipient of the data is located inside or outside the EU, companies must first assess whether or not the data transfer to a third party is GDPR-compliant at all, which requires applying a specific legal basis.
In particular, EU-based companies that intend to transfer personal data to the United Kingdom must be prepared for an unregulated Brexit. It must always be assessed on which legal basis the transfer of personal data to the UK can take place as of the Brexit reference date, and appropriate measures must be taken to ensure an adequate level of data protection.
On Wednesday 13 February 2019, the DAV/Berlin Law Society will shine a light on the impact of Brexit for legal practice in Germany in its event “(Hard) Brexit – what now?”.
The following legal fields will be addressed:
– Customs and Foreign Trade Law
– Cross-border Contracts
– Banking and Capital Market Law
– (Employment) Migration/Residence Law
– Data Protection
– IP/IT
– Family Law
– Domestic (transition) provisions in Great Britain
The BOEHMERT & BOEHMERT lawyers Prof. Dr. Jan Bernd Nordemann and Prof. Dr. Christian Czychowski will actively participate in the event. They will provide an overview of the changes in the field IP/IT.
The event will begin at 2 p.m. and will end at approx. 7 p.m. It will be held under the motto “Listen – Participate!” and will be followed by a discussion round.
The speech will take place in the DAV House (Littenstrasse 11, 10179 Berlin).
For members of BAV/FORUM/DAV, a participation fee of €30 will be charged, for non-members this fee will be €80 plus VAT
If you are interested in taking part, please register by e-mail.
An event hosted by DAV /Berlin Law Society
Patent attorney Prof Heinz Goddar will be very active over the coming months – as is often the case – travelling the world to attend IP events. His next appointments:
If you are interested in taking part in one of these events, please contact Professor Dr. Heinz Goddar.
In 2018, for the very first time in Germany, a court in Munich blocked access to an illegal website offering unlawful access to copyright-protected films. For this reason, this year’s producer brunch on 11.02.2019 will take place under the heading: “Restricted area, no access: Blocking instead of deletion as response to illegal online providers of film and television contents”.
Prof. Dr. Jan Bernd Nordemann will introduce the topic. His introduction will be followed by a keynote speech in English on website blocking in other EU countries by Parvez Siddiqui, INCOPRO, London. Dr. Martin Schaefer will then moderate a panel discussion with the guests:
The event will begin at 10:00 a.m. (doors open 9:15 a.m) and will run until 11:45 a.m. A buffet will be provided as usual afterwards.
The producer brunch is a joint event organised by the law firm BOEHMERT & BOEHMERT, the Federal State of Brandenburg and media.connect brandenburg.
The UK Government has laid to Parliament on 31 January 2019 additional draft regulations for Brexit (The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019). Further to the documents regarding European Union Trade Marks – see our Special Bulletin of 18 January 2019 – the Government now, among others, addresses International Registrations designating the European Union.
The concept stays the same: International Registrations are cloned onto the national register and are treated as UK trade marks. They will be called comparable trade marks (IR). Remember: Cloned EUTM will be called comparable trade marks (EU).
British Government has thus chosen to leave the Madrid System as administered by WIPO. So far, rumors went that EU designations could continue as UK designations within one and the same International Registration; this concept is called „continuation of effect“ and has been seen in history (when Montenegro departed from Serbia-Montenegro). Now it is clear that a strictly national solution is preferred.
As soon as practically possible after Exit Day, „registered“ EU designations will be cloned automatically and free of charge with application date, priority, seniority, and all goods and services onto the national register, just like EUTMs will be cloned. „Registered“ means that the EU designation received the grant according to Art. 189 (2) EUTMR so that there is no (longer a) refusal of protection pending. Opting-out is possible as long as third party interests do not stand opposed. With expiry of the International Registration within six months after Exit Day, the Office will contact right owners by setting a grace period of renewal without surcharge of another six months. Infringement proceedings will continue with the cloned trade mark. A new grace period of non-use will not be granted.
For „pending“ EU designations, there will be a fresh application period of nine months. Exit Day is not relevant here but either the day of international registration at WIPO or the day of subsequent designation, each relating to the EU designation. The clone will run through normal examination at the Office, at standard fees. According to this system cloning will not be permissible if and to the extent the pending EU designation has been refused protection by EUIPO prior to Exit Day, and such refusal is not subsequently lifted.
‘WRT 1000 – The World’s Leading Trademark Professionals 2019’ once again gave best markets for a total of seven BOEHMERT & BOEHMERT lawyers.
The specialist publisher says of the firm in general: “BOEHMERT & BOEHMERT is doubtlessly among the top law firms in Germany. There are many experienced circumspect lawyers working at an extremely high level.”
BOEHMERT & BOEHMERT therefore spearheads – as in previous years – the ‘Gold Level’. Florian Schwab, Partner at the Munich offices, comments on this long-standing success as follows: “We are very happy that our work has been rated so positively and at the same time are glad to be able to start each day with such a successful BOEHMERT & BOEHMERT team.”
Individual mention for their excellent work was given to:
WTR 1000 each year lists the leading law firms and personalities in trade mark law in 70 countries. The detailed entries can be found here.
‘WRT 1000 – The World’s Leading Trademark Professionals 2019’ once again gave best markets for a total of seven BOEHMERT & BOEHMERT lawyers.
The specialist publisher says of the firm in general: “BOEHMERT & BOEHMERT is doubtlessly among the top law firms in Germany. There are many experienced, circumspect lawyers working at an extremely high level.”
BOEHMERT & BOEHMERT therefore spearheads – as in previous years – the ‘Gold Level’. Florian Schwab, Partner at the Munich offices, comments on this long-standing success as follows: “We are very happy that our work has been rated so positively and at the same time are glad to be able to start each day with such a successful BOEHMERT & BOEHMERT team.”
Individual mention for their excellent work was given to:
WTR 1000 each year lists the leading law firms and personalities in trade mark law in 70 countries. The detailed entries can be found here.
In case of an unregulated hard Brexit, the European Data Protection Law would also come down with full force: The United Kingdom would become, from one day to the next, a “normal” third country and would also be treated as such by the EU Data Protection Law. The transfer of personal data from the EU to the United Kingdom would only be legitimate if and as long as specific conditions are met.
The EU General Data Protection Regulation (GDPR) establishes a uniform level of data protection throughout the European Union which allows free data exchange within the EU: Since the same Data Protection Law (in principle) equally applies in all EU Member States, personal data may be transferred within the Union across the internal frontiers without any special requirements or conditions, as they are equally well protected in all Member States via the GDPR.
As soon as the United Kingdom leaves the European Union, it will become a third country from one day to the next. Under the GDPR, personal data may be transferred to a third country only if specific conditions are met, as described below.
If the Brexit is unregulated, i.e. without any special agreement between the Union and the Kingdom, the aforesaid also applies to the UK – immediately and directly, as of 29 March 2019 at 00:00 CET, without any grace period, as provided for in Art. 71 of the Draft Agreement of 14 November 2018 which was rejected by the House of Commons on 15 January 2019: It was planned therein that the GDPR should continue to apply to the UK until the end of 2020. For the time thereafter, a national UK Data Protection Law was to be established to provide essentially the same level of data protection in the UK as within the European Union.
In terms of data protection, an unregulated Brexit particularly affects the “remainers” in the EU, namely, the EU-based companies that wish to exchange data with UK-based companies. The EU companies are then so-called “data exporters”, and they therefore have to set the stage for data transfer that is compliant with EU data protection law. If the requirements are not met, data must not be transferred to the third country. If data are transferred nevertheless, the EU-based companies are committing a data protection violation. It is therefore in the direct interest of EU-based companies to comply with the GDPR requirements for transfers to third countries.
The goal of special provisions of the GDPR for exporting data to third countries is the best possible protection of personal data and the persons to whom they relate in the third country. Data transfer to a third country is permitted only if
In detail:
With regard to some third countries, the European Commission did confirm that an adequate level of data protection does exist in these countries. These include, inter alia, Canada, Japan, Switzerland and Israel., Personal data may be transferred to these countries without establishing additional safeguards.
With regard to the UK, however, there is no such decision, and it is unlikely that such a decision will be taken in the near future. In a notification of 14 November 2018, the Commission in this regard simply stated:
“(…) the adoption of an adequacy decision is not part of the Commission’s contingency planning.”
”The export of data to third countries may take place if the data exporter provides “appropriate safeguards” to ensure an adequate level of data protection. In particular, this includes the use of the so-called “Model Clauses” which were previously approved by the Commission. These Model Clauses are currently still applicable in principle, in modified form, but are not unchallenged. In fact, they are currently under review in the context of proceedings pending before the European Court of Justice. It cannot be ruled out that these Clauses may suffer the same fate as the Safe Harbour Agreement, which was declared invalid by the ECJ.
“Appropriate safeguards” also include binding corporate rules (BCR) within groups of undertakings, which, however, must be approved beforehand by the supervisory authorities.
The GDPR provides a number of “derogations for specific situations” in which a transfer of data to a third country is permitted even without an adequacy decision and without “appropriate safeguards”. This includes, in particular, the case where the data subject has explicitly consented to the proposed transfer after having been informed of the possible risks of such transfers. Personal data, as another example, may also be transferred to a third country if this transfer is necessary for the performance of a contract concluded with the data subject or concluded in his/her interest.
Whether the data transfer is covered by one of the derogations must always be carefully examined on a case-by-case basis.
It is important to keep in mind that ensuring compliance of the third country transfer alone is not sufficient; in addition, the obligation to provide information must be fulfilled. The data subjects must be given information about the intention to transfer personal data to a third country and also about how the adequate level of data protection will be ensured.
The GDPR is European Union Law and applies directly in all EU Member States. One would think that the GDPR therefore does not have any relevance for UK-based companies after the UK’s withdrawal from the EU. But this is not the case: Companies established in third countries are also fully subject to the rules of the GDPR if they offer goods or services to individuals in the Union and in this context process personal data of persons residing there. For example, a British online shop that offers and sells goods to the EU, is subject, without restrictions, to the rules of the EU Data Protection Law. The same applies where the behavior of individuals residing in the European Union is monitored out of the third country (e.g. via web tracking).
For such UK companies, the unregulated Brexit therefore means that they are subject to the strict EU data protection regulations due to their activities in the EU, but (being companies in a third country) no longer benefit from the principle of the free transfer of data.
The question whether and under what conditions the transfer of data to a third country is compliant with the GDPR concerns Stage 2 of the assessment of whether the personal data may be transferred from one body to another. Irrespective of whether the recipient of the data is located inside or outside the EU, companies must first assess whether or not the data transfer to a third party is GDPR-compliant at all, which requires applying a specific legal basis.
In particular, EU-based companies that intend to transfer personal data to the United Kingdom must be prepared for an unregulated Brexit. It must always be assessed on which legal basis the transfer of personal data to the UK can take place as of the Brexit reference date, and appropriate measures must be taken to ensure an adequate level of data protection.
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If you are under 16 and wish to give your consent to volunteer services, you must ask your parent or guardian for permission. We use cookies and other technologies on our website. Some of them are essential, while others provide you with more advanced information. For more information about how we use your data, please see our Data Protection Policy. There is no obligation to consent to the processing of your data in order to use this offer. Please note that due to individual settings, not all functions of the website may be available. Here you can find an overview of all cookies used. You can give your consent to entire categories or view more information and thus select only certain cookies.