Donkey Business - When Vitus the Donkey Met An Orange DeLorean Car

Vitus the Donkey nibbled on an orange DeLorean causing damage that accumulated to Euro 5,800.

Since the value of the car is Euro 310,000 - the owner was Not Amused and wanted to be compensated for the damage. Not unreasonable, since the donkey took a bite through the fence of his firmly locked pasture.

The owner of the DeLorean, Markus Zahn (owner of Weinhaus Zahn), first asked the owner of the nibbling donkey to reimburse him for the damage. Please note: he only asked for the reimbursement of the material damage, not for any additional damages. The owner of the donkey refused, so (to the surprise of Mr. Zahn), it ended up in court. The Vitus owner’s defense: Mr. Zahn was stupid to park his expensive car that close to the fence. In other words: his fault.

The District Court of Gießen ruled that Vitus, the nibbling donkey, did indeed bite the car twice in September 2016 through the fence, resulting in damages of Euro 5,800 Euro. Since the fence was obviously not equipped to contain the appetite of Vitus the Donkey, his owner is therefore liable. Hence, the owner has to pay, even if Vitus might have taken the orange luxury car for a juicy carrot…

For the animal lovers among the readers: Vitus is currently owned by a lovely lady who takes the nibbling obsession of Vitus with humor. “Yes, he nibbles on everything, as you can see on the fences here.”

The owner of the DeLorean does not have any hard feelings regarding the donkey, and even petted him despite the fact that Vitus never apologized to him…

Needless to say, Vitus became a media star, in my humble opinion with more reason than the whole Kardashian clan thrown together…

Image courtesy of ©Markus Zahn, picture-alliance/dpa

Tip Top Lawyer wishes you and your family Happy New Year

Canada Prohibits SIM Locks - Good News For Consumers

Starting December 1, 2017, Canadian mobile phone providers are only allowed to sell devices without SIM locks. Mobile phones, mobile modems, tablets and the like must be able to operate with all compatible SIM cards.

The CRTC, the Canadian telecom regulator o, has this on Thursday (CRTC 2017-200). With the SIM lock ban, the Canadian government wants to increase competition between mobile phone providers. Currently, there are only a few providers which caused high tariffs for consumers, especially when compared to other countries.

The CRTC 2017-200 also stipulates that mobile devices that have currently a SIM lock, must be unlocked by the mobile phone provider free of charge. The new rules will benefit consumers as well as small businesses that want to unlock. When it comes to large enterprises, mobile phone providers can still negotiate SIM locks.

Previously, some mobile phone providers have refused to unlock mobile devices that were purchased by customers for other phone networks. Since 2013, the Canadian mobile operators were obliged to remove SIM locks at the customer's request. However, they would charge a free of around 50 Canadian dollars (about 34 euros) for the unlock codes. It is estimated that the providers cashed in a total of almost 38 million Canadian dollars (around 25 million euros) in 2016. At the end of 2017, this revenue source will dry up.

Prime Minister Justin Trudeau has also rejected imposing a tax on broadband Internet access. The Standing Committee of Canadian Heritage of the Canadian Parliament had proposed a tax of five percent. The idea was to use the revenue to subsidize Canadian TV and video game productions.

Although the charge on cable TV connections has been abolished, the number of subscribers is decreasing. Trudeau is nevertheless against an Internet tax and justified his rejection with keeping the election promise of his Liberal Party to relieve the financial burden of low and middle income earners.

Streaming Without Borders - Europeans Can Take Their Movie and Music Streaming Subscription Abroad

The European Parliament has just passed a new regulation that allows subscribers of Netflix, Spotify, Deezer or another online service to stream abroad. They can enjoy their favorite movies, TV shows, music, or games wherever they go within the EU. Currently, subscribers trying to stream abroad get a “content not available” message.

Starting 2018, subscribers can enjoy their paid for services abroad, regardless if they stay abroad for work, study, or vacation. In case of free services, providers can decide if their content will be available abroad; they are exempt from the new regulation.

The regulation tries to bring clarity in the scope of digital rights which has become complicated due to the rise of the use of mobile devices (smartphones, tablets, etc.). Subscribers want to enjoy content everywhere, not just in their own country. According the data of the European Commission, about half of the internet users, watch movies, listen to music and play games online. This number is expected to increase, since roaming costs inside the EU will abolished starting July 15, 2017.

The new regulation is part of the EU’s Digital Single Market strategy (DSM). According to the European Commission, geo-blocking and other geographically-based restrictions also undermine online shopping and cross-border sales.

Dutch Court Allows Zero-Rating - What Is The Impact For Net Neutrality?

T-Mobile Netherlands just won a landmark court case. According to a Dutch court in the City of Rotterdam, the mobile company can continue to offer its music streaming for free. T-Mobile launched its Music Freedom in October 2016.

This is a groundbreaking verdict, since Dutch law bans companies such as T-Mobile to provide zero-rating services since it leads to unfair competition. The Dutch Consumer and Market Authority (ACM) tried to block T-Mobile from offering zero-rated music streaming, asking the court to impose fines of 50,000 euros (around $52,000) per day up to a maximum of 500,000 euros (or around $521,000) if T-Mobile would not stop its free service.

To refresh your memory, zero-rating is a well-known practice among mobile network operators (MNO), mobile virtual network operators (MVNO), and Internet service providers (ISP), where they don’t charge end customers for certain services (in this case: music streaming). The catch? Zero-rating offerings are part of a limited or metered data plan to get ahead of the competition. That’s why the ACM objected; offering free music streaming would give T-Mobile an unfair advantage.

ACM argues that zero-rating offerings might have a negative impact on fair competition between online services. It could services such as Spotify and YouTube (that use more data) at a disadvantage. Zero-rating could therefore impact the way consumers use the Internet, which would violate the net neutrality principle.

ACM board member Henk Don argued that “Dutch law is clear about zero-rating: it is not allowed. That is why ACM is taking action … There is no such thing as free data: it causes other services to become more expensive”.

The Dutch court that zero-rating is indeed forbidden under the Dutch Telecommunication Act, but that this Dutch prohibition does not apply, since the Netherlands under the European Network Neutralization Regulation was not authorized to supersede. All efforts to include the Dutch regulation regarding zero-rating have failed.

However, the court does point out that the way that T-Mobile offers its Data Free Music service could still be violating the Net Neutrality Regulation, but since ACM did not raise this argument (since it assumed that zero-rating was per se prohibited), the court did not look into this aspect. For now, T-Mobile can continue to provide its free music streaming service.

ACM is not giving up; it started a new investigation of T-Mobile zero-rated music streaming offer. This time, it will not assess if the offer base complies with Dutch net neutrality legislation, but if it violates the EU's net neutrality rules.

Stay tuned!

(Second image courtesy of T-Mobile)

Dutch Court Rules: Boy (12) May Decide Himself About Chemo Treatment

David (12) had a brain tumor that was removed in November 2016. The medical team advised that he would undergo chemotherapy to cure him permanently. However, the boy did not want to submit to this intrusive treatment. Like his mother, he put his faith in alternative treatments.

This venue was against the treatment plan of the medical staff at the Dutch Academic Medical Center (AMC). The medics estimate his survival chances at 50/50 without chemotherapy, and at 75% to 80% with chemotherapy. In the end, both parties ended up in court to decide on David’s faith.

The District Court of Alkmaar ruled that the boy is allowed to determine his own treatment. It overturned a previous court decision from December 2016 that ruled that David was incapable of making these kind of decisions by himself.

The ruling makes sense under Dutch law. From the age of 12, children are heard in custody cases to decide where to live. Children between 12 and 16 also decide (together with their parents) about medical treatments. Normally, their opinion takes precedent of that of their parents.

Do you agree? Or do you think the court was wrong?

Judge Rules: Snuggies Are Blankets, Not Garments

Just in case you wondered, a US trade court ruled that Snuggies are blankets. That’s good news for importers since the import tax will be 8.5% and not 14.9%.

In the case Allstar Mktg. Grp., LLC v. United States, Ct. Int’l Trade, 13-00395, 2/10/17, the Justice Department claimed that Snuggies are garments, similar to scholastic robes or priestly vestments, and should therefore be taxed at such.

Judge Mark Barnett of the Court of International Trade ruled otherwise. He stated that since Snuggies don’t have closures, they can be sold as blankets. The judge rejected the Justice Department’s argument that Snuggies are akin to priestly vestments or scholastic robes.

It’s not the first time that the Allstar Products Group got into hot legal waters. Last year, consumers filed complaints about the company’s unethical marketing practices. An investigation found that consumers often faced undisclosed processing and handling fees and misleading up-selling offers. The Company reached an agreement with the New York Attorney General to pay $8m to settle the case. Eric Schneiderman issued a statement noting: "This agreement returns money to thousands of consumers in New York and across the nation who believed they were buying items at the price advertised on television, but ended up with extra merchandise and hidden fees they didn't bargain for.”

The origins of the Snuggie are also fishy. It looks like Allstar Product Group ripped off the Slanket, which was invented by Gary Clegg in 1997 and has been on the market ever since.

(Image courtesy of Slanket)

Smart Contracts & Blockchain Technology - The New Reality

More and more, the legal tech scene is riddled with terms such as smart contacts and blockchain. But what do these terms entail and how do their technologies impact the legal arena?

Looking at blockchain first, it is a database that is specifically protected against subsequent changes to its content. Falsifications or manipulations of data are thus virtually impossible to accomplish. On a technical level, this is made possible by storing a hash value of a previous data set in the new data set when the data is changed. Applying blockchain technology is particularly relevant when used as a distributed database (peer-to-peer). This eliminates the need for a central server system of a third party that needs to be trusted (such as money transfers to the server of a bank).

This kind of application is generally known as Bitcoin, which was established in 2009, making it the oldest blockchain application in a peer-to-peer network. Smart contracts are independently monitored in real time and automatically enforced according to previously defined terms between contract partners.

Smart contracts can independently monitor contracts in real time and automatically enforce previously defined rights of contract partners. When combined with blockchain technology, they can ensure that all transactions are legal and self-monitoring. This is particularly important when the contract parties are not familiar with each other and therefore have a trust issue.

There are currently very few legal applications for smart contracts for blockchain technology. However, this will change over time, since “smart” is gaining ground (just consider smart homes and the Internet of Things). The advantages of the combination of smart contract and blockchain technology is obvious: it can not be manipulable, and it is autonomous, decentralized and anonymous. The legal language in the future will become more and more a programming language - Code is Law.

Will the Lex Heineken Come Into Force?

The Hungarian government is cracking down on the commercial use of Nazi or communist symbols such as swastikas, hammer and sickles, or a red stars. The reason given is respect for the victims of the Holocaust and communism. Heineken’s red start has therefore seen as “an obvious political meaning”. Under the “Lex Heineken”, the Dutch brewery is looking at a fine of 6 million euro.

As with most laws and regulations, it has an interesting back story. For starters,  Hungarian restaurants like to promote local wines and beers. The consumption of beer is around 80 liter per person. The most consumed beers are from SAB Miller and Heineken. The ban could be a clever attempt to block foreign competition (which is not allowed under EU law).

Furthermore, Heineken won an infringement court case against a Hungarian-owned small brewery in Romania. Heineken sells a Csiki Premium beer, while the Rumanian brewery produces Csiki Sör (Csiki Beer). The court ruled in favor of Heineken, and the name Csiki Sör cannot be used anymore. The nationalistic Hungarian government likes to stick up for its minorities across its borders. The ban could be seen as a revenge act.

Last but not least, the government of Viktor Orbán is against the presence of international companies in Hungary. The central and local authorities believe that those internationals sell inferior quality of EU products in Eastern Europe, while Western Europe enjoys top quality.

The “Lex Heineken” is currently being discussed in parliament. Even if it passes, it is unlikely that it will stand up. Chasing strategic partner and tax payer Heineken out of Hungary is not a smart move.

European Court of Justice: Calling customer service cannot be more expensive than normal phone calls

The European Court just rules that calling customer service cannot be more expensive than normal phone calls. In the case of the German company Comtech, this electronic web shop used a paid 0180-number to reach its helpdesk. The German organization fighting against unfair business practices appealed to the District Court of Stuttgart to put an end to these additional costs for the caller. The District Court referred the case to the European Court in Luxembourg.

The case related to the interpretation of a European Directive which states that customers of a company's customer service should be able to call for the standard call rate. But what exactly is the “standard rate” remains unclear.

The general principle is that service should be free of charge.

The European Court ruled that customer service should not be more expensive than a “fixed line call of cell call”. It does not really matter if a company makes a profit or not regarding the additional telephone costs. Higher costs discourage customers to request information, to claim the product warranty or to cancel their subscription, as explained by the Court.

“We are happy with this ruling”, stated the Consumers Association. “Service has to be free of charge. That is a point of principle.” Companies should only charge normal call rates, which many companies already do.” 

This post was written by Tip Top Lawyer.

Chanel vs Chanelle Nailbar - Fair or Foul?

The owner of Chanelle Nailbar got a nasty surprise: Fashion and beauty empire Chanel was not amused by the use of its name and promptly sent a cease and desist letter. 

Owner Le Ngyun was surprised, she came up with the name by combining the first name of her daughter (Chanel) with her own family name (Le). Business is booming - her Chanelle Nailbar became a household name when it was mentioned as the best nail studio in the Netherlands by the Dutch TV channel RTL.

According to the lawyer of Chanel, Ms. R. van der Straaten, she infringes on the IP of Chanel since Chanelle Nailbar profits from the appeal of the well-known Chanel brand. 

Chanel is willing to forfeit any claims, providing that Ms. Le changes her trade name to avoid confusion. The company understands that is was never Le’s intent to infringe on the IP of Chanel. That’s why Chanel is willing to find a new name together with Ms. Le. Chanel does however claim a penalty of 1,000 euro per day that Ms. Le keeps on using her Chanelle trade name, as well as 750 euro in legal fees.

Ms. Le is uncertain what to do. She is attached to the Chanelle trade name since it has personal and emotional value as well as commercial value.

The (social) media got involved - making all kinds of suggestions for new names such as “Chanaile” and “Nachelle”. A legal secretary of a law firm situated opposite of the nail studio used it as an opportunity to drum up business for her bosses and wrote that Ms. Le can drop in anytime for advice.

What do you think? Brands such as Chanel invest a lot of time and money to build and protect their brand, so it makes sense that they take an aggressive approach. But small entrepreneurs might also use a similar brand for legitimate reasons. 

Who is right in this case? The jury is out…

Google's Sense of Humor

Google has a sense of humor. When Alphabet announced that it would buy back part of its own shares, it looked like a standard announcement. 

Companies regularly buy back their own stock when they have a lot of money in their coffers or when they have the feeling that their stock in undervalued. 

But what is hilarious in this case is the price of the buy back: USD 7,019,340,976.83. This number is the sum of 26 (the number of letters in the current alphabet) to the power of the mathematical constant e times one million. 

It would have been easy (and so boring!) to announce a price of USD 7b, so why not throw in another USD 19m plus to have some fun? Especially when money is not an object!

It is not the first time that Google has some nerdy fun, just look at the name Google itself. It’s a play on the words “googol” which stands for the number 1 with one hundred zeros.

It is not the first time that Alphabet had this kind of fun. In 2015, it bought back shares in the amount of USD 5,099,019,513.59. That number is the square root of 26 times one million.

When Google went public, the intention was to raise USD 2,718,281,828 which is 1 billion times the mathematical constant e. Google obviously has a thing for this constant, it also used it when is made its offer of USD 3.14b for Nortel Networks. Unsuccessfully so, the Nortel’s patent portfolio was sold for USD 4.5m.

Stay tuned for the next nerdy announcement!