News and Events 2010

Data Protection: New Penalties – Information Commissioner - Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 - January 2010

The Information Commissioner will be granted new powers under (SI 2010/31), the Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 (“Regulations”) to be able to impose civil monetary penalties on data controllers for non-compliance. These Regulations will come into force on 6 April 2010.

Summary

These Regulations make provision in relation to the power of the Information Commissioner to impose monetary penalty notices on data controllers under section 55A of the Data Protection Act 1998 (“the Act”)
Regulation 2 prescribes £500,000 as the maximum amount the Information Commissioner may impose as a monetary penalty
Regulation 3 prescribes the information that the Information Commissioner must include in a notice of intent, which the Information Commissioner serves on a data controller when the Information Commissioner intends to impose a monetary penalty
Regulation 4 prescribes the information the Information Commissioner must include in a monetary penalty notice.

Non Compliance

The Regulations set out the maximum amount of monetary penalty and the minimum details to be contained in a notice of intent and in a monetary penalty notice (see below).

The Information Commissioner is able to serve a monetary penalty notice on a data controller if the Information Commissioner is satisfied there has been both a serious contravention by the data controller of the Eight Data Protection Principles and it was likely to cause substantial damage or distress. Such contraventions must be either deliberate or something which the data controller knew would occur (or ought to have known) and of a kind likely to cause substantial damage or substantial distress, but in respect of which the data controller failed to take reasonable steps to prevent such occurrence.

A penalty for knowingly or recklessly failing to comply with the data protection principles so as to create a substantial risk that damage or distress will be caused to any person
A power for the Information Commissioner to inspect personal data and the circumstances surrounding its processing in order to assess whether or not any processing of the data is carried out in compliance with the Act
A power for the Information Commissioner to require a data controller to provide him with a report by a skilled person
Enhanced enforcement powers to enable the Information Commissioner to bring seriously unlawful processing to an immediate halt, to place formal undertakings on a statutory basis and to enable the Information Commissioner to take enforcement action to prevent breaches of the Act that are likely to occur
Information notices that can be served on any person rather than just a data controller. More

Intellectual Property Law – Trade Mark Law – Community Trade Mark – Opposition – Revocation – Abuse of Process - January 2010

In the European Court of Justice Decision in Stella Kunststofftechnik GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) [2010] Case T-27/09, the ECJ held that if there were opposition proceedings pending against a trade mark it did not preclude a third party bringing revocation proceedings to cancel a trade mark registration. The ECJ held that revocation and opposition proceedings were distinct and autonomous proceedings.

The trade mark 'STELLA' was registered as a Community Trade Mark in respect of classes 6, 8, 16, 20 and 21 in 2001. An Intervener filed a Community Trade Mark application in 2004 for a device mark 'STELLA PACK' in respect of classes 4, 6, 16, 20 and 21. A notice of opposition was filed against the application for STELLA PACK. More

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