Advocate General’s Opinion in Case C-470/21 - Skechers sues Hermès

ADVOCATE GENERAL’S OPINION IN CASE C-470/21

First Advocate General Szpunar of the European Court of Justice (ECJ), has issued an Opinion, as regards the retention and access to certain data of internet users, more specifically of IP addresses, by national authorities, when this data is the only means to identify the holder of an address suspected of copyright infringement. 

The case arose in France, as a consequence of introducing automated processing of personal data, in order to protect copyrighted works available online from possible infringements. The aim of this processing was to warn individuals that were not preventing the access to the internet from being used to perform acts of copyright infringement, by sending recommendations, pursuant the “graduated response” procedure provided for in the French Intellectual Property Code. 

The High Authority for the dissemination of works and the protection of rights on the internet (Hadopi) was responsible for collecting the data relating to the civil identity of the above-mentioned users and for issuing the recommendations.

The action was brought to the Conseil d’Ètat by 4 French associations for the protection of rights (namely, La Quadrature du Net, the Federation of Associative Internet Access Providers, the Franciliens.net and the French Data Network), arguing that the provision authorising access to connection data for cases in which the copyright infringement was not serious, could be disproportionate and required prior review by a Court or an independent administrative entity with binding power. 

For this reason, the Conseil d’Ètat raised the question to the ECJ, of whether prior review was applicable to civil identity data, as this would jeopardise the work performed by Hadopi.

From its side, the Advocate General considers that the EU law does not require prior review by a Court or an independent administrative body, as regards Hadopi’s access to civil identity data linked to users’ IP addresses. First, because the access performed by Hadopi is limited to “linking civil identity data to the IP address and to the file viewed at a given point in time”. Secondly, as “the access to the civil identity data linked to an IP address is strictly limited to what is necessary to achieve the objective pursued”. This means that this mechanism can be used when the IP address is the only means to investigate and identify the person suspected of online copyright infringement. 

Furthermore, the Advocate General holds that the proposal complies with the requirement of proportionality and in accordance with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union. 

SKECHERS SUES HERMÈS FOR DESIGN INFRINGEMENT

Footwear manufacturer Skechers recently sued the luxury brand Hermès, claiming infringement over the design of their sneaker’s soles. 

The claim was based on two sneakers sole designs, registered at the USPTO, namely “Skechers Go Walk” and “Massage Fit”. Skechers alleged that the mid-sole and undersole design elements of Hermès’ “Éclair” and “Envol” designs were allegedly identical to their registered designs, consisting of a wavy sneaker sole. 

The Manhattan federal Court in charge of the case will now have to rule on whether Hermès is infringing Skechers’ sole designs and in that case, whether to uphold the monetary compensation and the injunctive relief sought by Skechers.