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Saturday, March 27, 2010
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The European Court of Justice has issued a landmark decision in a dispute between Google and Louis Vuitton concerning Google’s service AdWords.
The dispute arised from a claim brought by Louis Vuitton before the French Court of Cassation as it found out in 2003 that: “the entry, by internet users, of terms constituting its trade marks into Google’s search engine triggered the display, under the heading ‘sponsored links’, of links to sites offering imitation versions of Vuitton’s products. It was also established that Google offered advertisers the possibility of selecting not only keywords which correspond to Vuitton’s trade marks, but also those keywords in combination with expressions indicating imitation, such as ‘imitation’ and ‘copy’”.
Given the uncertainty in relation to the role taken by the advertiser selecting the keywords and by Google itself in the provision of AdWords service, the French Court of Cassation decided to refer the case to the ECJ. Subsequently other disputes arose on the same issue and the ECJ decided to jointly rule on them.

The European Court of Justice held that:
  • the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service (i.e. Google AdWords), goods or services identical with those for which that mark is registered;
  • an internet referencing service provider (i.e. Google) which stores, as a keyword, a sign identical with a trade mark and organises the display of advertisements on the basis of that keyword does not use that sign within the meaning of the Trade Mark Directive 89/104/EEC or of the Trade Mark Regulation (EC) No 40/94;
  • the hosting providers liability exemption set out in Article 14 of E-Commerce Directive 2000/31/EC must be interpreted as applicable to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. In this context, the mere facts that: (i) the referencing service is subject to payment cannot have the effect of depriving Google of hosting provider exemption prescribed by the E-Commerce Directive and (ii) likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored in memory on its server.
Interestingly, the same approach referred above has been confirmed by the ECJ in a ruling issued two days later on the case Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni, trekking at Reisen GmbH.
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Friday, March 26, 2010
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The long awaited decree regulating online poker cash games and casino games in Italy has been finally published on the Official Gazette and Italian licensed operators will be able very shortly to offer such games.
The decree prescribes that:
  • operators need to go through an authorization process relating to their platform and each game they intend to offer;
  • the gaming tax applicable on cash games and casino games is 20% of the revenues (i.e. turnover net of amount returned to players);
  • at least 90% of the amount collected from players is allocated to the jackpot;
  • the maximum initial stake cannot be higher than € 1,000.
Also, the decree increased up to € 250 the maximum buy-in for skill games (including tournament based poker games) and also allowed the organization of multilevel tournaments where the winner of a gaming session (e.g. a qualification tournament) is obliged to invest the win as a buy-in for the subsequent gaming session (e.g. the final tournament).
The launch of such games is likely to considerably change the Italian gaming market during the course of this year; operators that will be able to the launch the most interesting games, are likely to attract a considerable number of players in a very short term.
If you need clarifications on the decree on cash games and casino games, on the relative authorization process and on some others related issues, feel free to contact me, Giulio Coraggio.
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Sunday, March 21, 2010
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I am delighted to inform you that I have been invited as a speaker at the World Gambling Briefing which will take place in Malta on 24-25 March 2010. In particular, I will be one of the panelists during the session “Innovations in iGaming: What Unique Regulatory Challenges Will They Pose?” on the 24th afternoon.
If you want to have a chat about the Italian gaming market or to just say hi, send an email to me, Giulio Coraggio, and I will more than happy to share a delicious Maltese pastizzi and a beer with you.
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Friday, March 19, 2010
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We have already discussed about the regulatory issues relating to online contests in Italy which sometimes are underestimated or simply ignored by promoters.
However, companies organizing prize contests (both online and offline) shall start to pay more attention to the compliance of their promotions with Italian law. Indeed, Italy has notified a draft decree to the European Commission prescribing not only more stringent formalities for the notification of prize competitions and prize operations to the competent authorities, but also penalties up to € 500,000 for their performance in breach of Italian laws and such penalties are applicable against any person involved in the distribution chain of the promotion.
Given the very active approach taken in the last years by Italian authorities against promotions, the coming into force of this new decree (expected to occur in the next 3-4 months) is likely to completly change the approach of companies in respect to such initiatives forcing them to review more in details their promotions.
Do you need more information on the above? Feel free to contact me, Giulio Coraggio.
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Tuesday, March 16, 2010
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The 3 months consultation before the European Commission of the draft decree regulating the new Italian gaming license regime will expire on the 19th of March. However, there are already rumors on the potential outcome of the consultation. Indeed, it appears that the comments raised by some operators will oblige the Italian gaming authority to require a 3 months consultation before the European Commission also in relation to the further decrees implementing the abovementioned draft decree which will lead to further delays.
This means that up to the full implementation of the decrees setting out the new licensing regime, new entrants in the Italian gaming market will not be able to apply for an Italian online gaming license.
If these rumors are confirmed, the sole current options open to operators that want to enter in Italian gaming market in the shortest possible term are to purchase either an Italian license or the entire Italian licensed entity from another operator. This solution would entitle new entrants to be immediately active in a market that will be rapidly evolving because of the recent launch of online bingo and of the upcoming launch on poker cash games and casino games.
Feel free to contact me, Giulio Coraggio, if you want to discuss the above. 
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Thursday, March 11, 2010
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The Italian Criminal Court of Cassation issued a very interesting decision on defamatory comments published in an online forum. 
To give you a bit of background information, Italian press law prescribes that directors of editorial products (e.g. a journal, magazines, newspapers) are objectively liable for any content published on them even if they had no knowledge of the illegal material. The definition of editorial products includes also online products such information websites. 
This provision has been subject to considerable complaints because in several instances courts and public prosecutors have tried to extend its applicability to Internet hosting providers and these attempts would be in contrast with Articles 14 and 15 E-Commerce Directive according to which hosting providers are not obliged to monitor the contents (e.g. comments, videos etc.) published by their users and are not liable for them provided that they do not have actual knowledge of the illegal activity/information and - upon obtaining such knowledge - they act expeditiously to remove it or disable to access to it. 
The Court of Cassation clarified that the accessibility of comments in a online forum by any Internet users does not make them fall under the definition of press materials and consequently the liability regime applicable to directors of editorial products is not applicable in such circumstance. Editors of forums, blogs, journals etc. will not be liable for the comments made by their users as soon as they are not aware of them and upon obtaining such knowledge promptly remove them. Moreover, it is possible to argue that the same reasoning is applicable to any content published by users on websites.
This is a very relevant decision that is in contrast with the approach repetitously adopted by Italian courts on similar matters. Feel free to contact me, Giulio Coraggio, if you need any advice on the regime applicable to contents published on your website.
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Friday, March 5, 2010
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As already discussed in a previous post "Online Bingo in Italy...Time for a Break", the Administrative Court of the Lazio region had held that the decree governing online bingo was not compliant with the formalities required by Italian law and consequently cancelled such decree. The decision of the Administrative Court has been subsequently appealed and today there was the hearing on the suspension of the decision of court of first instance.
As most of the commentators expected, the Administrative Court of Appeal ordered the suspension of the decision of the Administrative Court of the Lazio region up its final decision. Consequently, the offer of online bingo in Italy is again lawful and online bingo operators interested in entering into the Italian market shall therefore speed up.
Feel free to contact me, Giulio Coraggio, if you want to the discuss of the regulatory regime governing online bingo.  
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Monday, March 1, 2010
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The Italian Data Protection Authority has ordered to 3 telecom providers to delete telecom and Internet traffic data that they were storing for a period longer than that prescribed by the Italian Privacy Code as well as other data (e.g. the subject of emails and the IP address of destination) that the provider was not authorized to process as such data were not necessary to comply with legal obligations and to perform the required service.
Also, the Data Protection Authority challenged to one telecom provider the lack of implementation of the security measures prescribed by the Italian Privacy Code in the processing of personal data as well as the additional security measures to be implemented during the storage of traffic data.
These decisions show a careful control by the Italian Data Protection Authority of the data processing performed by telecom providers because of relevant amount of personal data to which they can have access. 
The inspecitions by the Data Protection Authority have become even more intensive after the coming into force of the decree implementing the Data Retention Directive which prescribed specific measures in the storage of telecom and Internet traffic data and considerable sanctions in case of their breach.
Need to know more? Contact me, Giulio Coraggio.
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