Monday, 26 October 2015

Banking Secrecy has to Step Back in Cases of Obvious Trademark Infringement

In the case "Davidoff Hot Water II", the plaintiff had claimed contact data of an account holder involved in activities relating to trademark infrimgement from a bank. The bank invoked banking secrecy and did not hand over the address of the account holder.

As noted here, the BGH referred the question to the ECJ, who ruled that (par. 39 and 40)
... unlimited and unconditional authorisation to invoke banking secrecy is such as to prevent the procedures laid down by Directive 2004/48 and the measures taken by the competent national authorities, in particular when they seek to order the disclosure of necessary information under Article 8(1) of that directive, from taking due account of the specific characteristics of each intellectual property right and, where appropriate, the intentional or unintentional character of the infringement. 
 It follows that an authorisation of that kind is capable of seriously impairing, in the context of Article 8 of Directive 2004/48, the effective exercise of the fundamental right to intellectual property — to the benefit of the right of persons covered by Article 8(1) of Directive 2004/48 to the protection of personal data concerning them — as a result of the obligation, for a banking institution, to respect banking secrecy. 

The task to find "any other means or remedies" (par. 42) or to establish criteria are to be applied for striking the right balance between the right to intellectual property, on the one hand, and the right to protection of personal data is left to the referring court. The repeated reference to recital 17 of the Directive 2004/48 implies that the intentional or unintentional character of the infringement should play a role.
According to the press release here, the BGH has decided in favor of the right holder. The press release refers to cases of "obvious" infrimgements and does not give any details on the criteria to be applied. This is eventually left to the reasons of the decision, wich are not ye published.

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