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2022IP News Report #11

March 23, 2022

Data Privacy News

Argentina appointed new Director of the Access to Public Information Agency

On 10 March 2022, Argentina’s president officialized the appointment of Beatriz de Anchorena as Director of the Access to Public Information Agency (hereinafter, the “APIA”), the supervisory authority of the Personal Data Protection Act, the Do Not Call Registry Act and the Access to Public Information Act, for five years. The directorship of the AAIP had been unoccupied since January 2021.
The hearing to discuss the nomination took place on 25 February and was attended by 86 participants (33 speakers). Beatriz de Anchorena shared the 4 central axes of her work plan for the APIA:

  • a) Institutional strengthening of the APIA;
  • b) Quality improvement in active transparency and open data;
  • c) Updating regulations and reinforcing the management of personal data protection;
  • d) Consolidation of the Federal Council for Transparency.

Regarding the updating of regulations, De Anchorena highlighted that there is a broad understanding of the need to update Law No. 25,326 on Personal Data Protection (from the year 2000). In this sense, she proposed analyzing the European General Data Protection Regulation and regional best practices, such as the Brazilian law.
In any case, the new Director affirmed that, in parallel to the promotion of a draft law, concrete and incremental decisions and resolutions will be taken to address the broad range of personal data protection challenges.

 

Access to the full video of the hearing : https://www.youtube.com/watch?v=unkxWKmT9D8


European data protection board publishes guidance on security incidents notification

By the end of 2021, the European Data Protection Board (hereinafter, the “EDPB”) issued version 2.0 of the Personal Data Breach notifications Guide (No. 1/2021 – hereinafter, the “Guide”). The EDPB is an independent European body that contributes to the consistent application of data protection rules across the European Union (hereinafter, the “EU”) and promotes cooperation between data protection authorities in the EU.
The aim of the Guide is to assist data controllers in managing data breaches and to define which factors should be considered during the risk assessment.

Currently, and unlike the European Data Protection Regulation, the Argentinean data protection framework does not foresee the obligation to notify security incidents to the Access to Public Information Agency (hereinafter, the “APIA”) and/or to the affected parties.

In any event, it is important to highlight that the security measures recommended for the processing and storage of personal data (Resolution No. 47/2018 issued by the APIA) include the practice of keeping a record of security breaches and notifying them to the enforcement authority. Lately, the APIA has considered non-compliance with these recommendations when sanctioning companies that are victims of data breaches.

Access to the Guide: https://edpb.europa.eu/system/files/2022-01/edpb_guidelines_012021_pdbnotification_adopted_en.pdf

 


Intellectual Property News

A cautionary measure was granted regarding the use of the among us trademark in Argentina

On March 2, 2022, the Chamber II of the National Court of Appeals for Civil and Commercial Matters granted a cautionary measure requested by Innersloth LLC (developer of the popular videogame “Among Us” and, hereinafter, “The Company”). The precautionary measure was filed against Mr. Carlos Valentino Golfetto (hereinafter, “Mr Golfetto” or “The Defendant”), so that the latter refrains from using, until the final judgment is rendered, the Word & Design trademark AMONG US in International Class 28 and the industrial model that protects the design of a “crew member” (each one of the characters of the video game in matter).
The Company applied for registration, in Argentina, of the trademark AMONG US (Word and Word & Design) in International Classes 9, 14, 16, 18, 25, 28, 35, 41 and received no opposition. However, the Company noted the existence, in the name of the defendant, of the trademark application in International Class 28 (October 2020) and the application and subsequent grant of the industrial design of the “crew member” in December 2020.

The First Instance Judge dismissed the injunction requested, on the grounds that he did not find evidence of the likelihood of the right invoked. The Company filed an appeal, pointing out that the existence of documentation alone demonstrated his rights (copyright registration certificates, copyright transfer document, trademarks applied for and granted abroad, Linkedin record where it appears that the defendant sells toys, journalistic documentation revealing the popularity of the game).
Upon receipt of the file by the Appeal Court, it was considered proven that the Company:
– is the foreign owner of the trademark owned by Mr. Golfetto in Argentina.
– is the developer and owner of the intellectual property rights of the video game “Among Us” and of each of the characters in the video game called “crew member”.- is the holder of trademark applications in Argentina and of applications and registrations in many foreign countries.

The Court of Appeal considered that there was a “fairly certain appearance” of a legitimate interest of the Company to use the trademark in Argentine territory. In addition, the Court found it at least curious that, less than a month after the massive diffusion of the news of the video game in Argentina (September 2020), the Defendant proceeded to register the Word & Design trademark AMONG US in International Class 28 and the identical industrial model that covered the design of the same “crew member” of the video game.
The Court ruled the impossibility of remaining indifferent to “such an identity with the trademarks registered by the plaintiff in the different countries referred to, which does not seem to be the result of a simple coincidence”. Furthermore, the judges stated that “the petitioner is a legal entity originating in a country that is a member of international conventions to which Argentina has adhered with the force of law (Section 1 of the Paris Convention), and therefore, as has been said, deserves protection in our country”.

Regarding the danger of delay, and beyond the fact that there was no evidence of the use of the trademarks or that toys were sold with such identifying features, the Court of Appeal considered that, in the event that the Defendant began to operate under the trademark and the design, it could cause damage difficult to repair for the Company, in addition to the time required for an eventual annulment trial if the Company obtains the granting of the registrations in Argentina. It also considered the protection of the consumers, who will believe that they were dealing with products related to the American video game when this was not the case.

The Court’s measure regarding the use prohibition contemplates any form and media, including – but not limited to – internet and social networks.

For more information contact:

The authors thank our associate´s contribution:

Franco Raffinetti
Associate Propiedad Intelectual, Privacidad, Nuevas Tecnologías y Publicidad legal.

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