SPANISH COMPANIES CAN REVIEW THEIR EMPLOYEES MAILS, SAYS THE SPANISH CONSTITUTIONAL COURT

The Spanish Constitutional Court has recently extended the right of Spanish companies to review their employees’ mails.

Traditionally, Spanish Courts accepted that companies may review their employees’ company e-mails, if they were previously informed, in written, that:

(i)           They were not allowed to use said mails for personal (not professional) purposes; and

(ii)          The company would review the e-mails and other correspondence.

The Spanish Constitutional Court has now allowed the companies to control the e-mails, without previously informing their employees.

1.- The Employee was informed that the company was controlling his e- mails

The Constitutional Court bases its Decision in the existence of a “Collective Bargaining Agreement”, with a Clause forbidding the “use of computers owned by the company for means other than complying with the working obligations”.

The Court considers this information to be enough. The employee could not have a reasonable expectation of confidentiality, when sending e-mails through the company’s computer’s accounts. Accordingly, the right of privacy in the communications has not been infringed, because there is not a “reasonable expectation” of confidentiality.

2.- Justified reasons to investigate

The case refers to the e-mails of an employee, suspected of committing acts of Unfair Competition. The company could reasonably think that he was preparing his departure from the company and he was going to work for the competition: transmitting confidential information and data. The Court states that controlling the e-mails was:

Justified. The company had “suspicions of an irregular activity of the employee”.

Suitable. Controlling the employee’s communications was necessary, to verify that he was really committing the suspicious activities: sending confidential information to third parties.

Necessary. The content of the e-mails was a clear evidence of the irregular activity of the employee.

3.- Investigating the company’s PC and telephone used by the employee

The company initiated its investigation, analysing the employee’s PC’s. The Constitutional Court argues that this was reasonable. And it was done with all guarantees: an independent specialized computer expert and a notary. The information obtained proved that the employee was transferring confidential information.

Later, the company investigated the employee’s professional cellular phone (owned by the company). However, this information could not be used by the company against the employee: the Collective Bargaining Agreement does not say anything about controlling the cellular phones. So, all the case was based on the information obtained in the computer.

4.- Evidence of unfair competition activity

The company could prove, through the PC, that the employee was leaking confidential information to a competitor; and he was expelled from the company. The Constitutional Court considers that this obtaining of information, and its use to expel the employee, was constitutionally acceptable, and was not infringing his right of privacy in communications.

The Constitutional Court argues that obtaining (and using) this information was constitutional. Because the employee should have known that the company’s employees had no right to use the company’s mails for their personal needs. And this was the case.

This Decision is very important, for many areas of Spanish Law, especially in Unfair Competition (Passing Off) cases. The companies frequently have to obtain evidence that the employee is preparing his transfer to the competition, sending confidential information via e-mail. And can be more easily controlled, from now on.

Santiago Nadal

THREE-DIMENSIONAL TRADEMARK OR REGISTRATION OF DESIGN

Three-dimensional (3D) trademark protects the shape of products. The holder or holders of a 3D trademark are able to prevent competitors from using packaging or products with a three-dimensional shape that can confuse consumers with theirs.

3D trademark registration is appropriate for those types of products, or parts of them,whose 3D appearance adequately identifies the trademark. This is what happens with the Coca-Cola bottle, the ColaCao can and the Toblerone packaging.

The guarantee of this trademark, as ascertained in the legal definition of the Trademark Law’s Article 4.1, is that goods or services bearing it have been manufactured or supplied by a company which is responsible for its quality.

The essential part is the distinguishing feature that identifies a company’s product or service and its qualities. The susceptible graphical representation marks that constitute the trademark fulfill this function.

The key point is to avoid risking any confusion, since it is essential to be able to distinguish the trademark products and services in the market, so that the average consumer does not confuse them with others and wrongly associates them with another business source.

In this aspect the label, the back label and packaging, and product shape are unquestionably included. We refer to the three-dimensional trademark.

Recalling the definition of trademarks given in the Trademark Law’s Article 4.1 which highlights its distinctive feature, it is a logical conclusion that labeling and packaging areincluded within this sphere; currently, rather than ordering a product from a sales person, the consumer can choose it instantly in supermarkets or department stores, so that the external appearance is of far reaching differentiating importance: it is the distinctiveness of the trademarks packaging, with or without labeling.

The law, based on different rulings, has provided protection to bottle and label packaging-(Bayleys alcoholic beverage) in 19 May 1993 and 29 October 1994 Judgments; the packaging, shape and colour of the can (COLA-CAO) in 23 February 1998 Judgment; and specifically addressed, although the risk of confusion was not appreciated, in 8 May 1997(the case ofPOMPADOUR/BEN-HUR) and 5 June 5 1997 Judgments (the case of VIDALSASSOON).

Difference between a three-dimensional trademark and a community design
Two forms of protection are possible.

A design is protected if it meets the legal requirements for novelty and individual character at the time of submission. Design protection covers the shape, line and configuration of a product in which the design is incorporated or applied.

The granting of a 3D trademark takes place if it is considered that the product has marks that distinguish the applicant’s products from those of another similar company.

The protection afforded to a 3D trademark is related to the distinctive character rof the marks themselves compared to reproductions and identical marks with visual, phonetic or conceptual similarities that could lead to confusion.

For example, a package can be protected as a 3D trademark and as a registered design if it meets legal requirements: a novel shape becomes synonymous with the products of a company and can therefore be registered as a trademark, as well as being protected as design for its uniqueness and novelty.

Both registrations, 3D trademark and industrial design, are not the same. Industrial design protects the aesthetic quality of the objector product. The 3D trademark protects the trademark identification through shape and visual image.

Three-dimensional trademark protection compared to design

Registration of a 3D trademark protects the distinctiveness of the trademark compared with other existing marks that are being used for the same goods or services, while the design protects the novelty and uniqueness of the products.

Avery original shape cannot be registered as a 3D trademark if it does not fulfill the condition of being distinctive with respect to the products or services which have been submitted.

A product, to which a design has been applied, that has been marketed years before submitting the registration, will be registered but any third party could declare the registration null for lack of novelty.

In fact, the novelty feature is not applied to trademarks and the distinctive feature is not applied to designs.

Duration of protection in each case
Trademarks do not have any time limit (they can be renewed indefinitely for periods of 10 years), while registered designs have a maximum duration of 25 years from the date of application for registration.

THE TIMES THEY ARE A-CHANGING - BOB DYLAN

Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you is worth savin’
Then you better start swimmin’ or you’ll sink like a stone
For the times they are a-changin’

Come writers and critics
Who prophesize with your pen
And keep your eyes wide
The chance won’t come again
And don’t speak too soon
For the wheel’s still in spin
And there’s no tellin’ who that it’s namin’
For the loser now will be later to win
For the times they are a-changin’

Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside and it is ragin’
It’ll soon shake your windows and rattle your walls
For the times they are a-changin’

Come mothers and fathers
Throughout the land
And don’t criticize
What you can’t understand
Your sons and your daughters
Are beyond your command
Your old road is rapidly agin’
Please get out of the new one if you can’t lend your hand
For the times they are a-changin’

The line it is drawn
The curse it is cast
The slow one now
Will later be fast
As the present now
Will later be past
The order is rapidly fadin’
And the first one now will later be last
For the times they are a-changin’

Copyright © 1963, 1964 by Warner Bros. Inc.; renewed 1991, 1992 by Special Rider Music

Read more: http://www.bobdylan.com/us/songs/times-they-are-changin#ixzz2hPTB4ZRK