newtech.law - legal aspects of new technologies

In an earlier article I wrote about FinTech in the draft Polish Capital
Markets Strategy (SRRK). There were lots of FinTech strands in the strategy, undoubtedly
confronting one of the identified structural barriers to the growth of the
capital markets in Poland, described as “outdated technologies or a lack of
technologies in key segments of the market, including inadequate investment in
FinTech solutions.”

The final version of the SRRK strategy, adopted by the Council of Ministers on 1 October 2019, continues to devote many remarks to FinTech. Use of competitive new technologies is included among the five fundamental principles to be followed in implementing the strategy. Considering that over the last few years there has hardly been any technology generating as much interest on the financial markets as DLT/blockchain, it was natural to include it in the strategy.

An anti-obscenity association issued a proposal for an Act on Protection of Minors against Pornographic Content on 16 December 2019. It has gained the official support of the Family Council, which recommended to the Prime Minister that the proposal be adopted for further legislative work. The Minister of Family, Labour and Social Policy announced that work on the bill should conclude in the first half of 2020. The need to restrict children’s access to pornography is obvious, but the proposal has generated much controversy, mainly due to the proposed mechanism for age verification, which may invade internet users’ privacy. The proposal would also impose additional obligations on telecommunications operators, electronic service providers, and payment service providers.

Are computer games still
a niche product, or have they entered the mainstream? The possibility of
registering a trademark similar to an earlier mark turns on this issue.

Kalypso Media Group GmbH v EUIPO, Case T‑700/18
(judgment of the General Court of 10 October 2019)

The computer game
industry is one of the fastest-growing sectors of the economy, in Poland as elsewhere.
Dynamic growth carries the risk of disputes affecting various aspects
of gaming.

A case recently reached the docket of the General Court (a division of the Court of Justice of the European Union) concerning the application for registration of an EU trademark for the word sign DUNGEONS by Kalypso Media Group GmbH. The application was opposed by Wizards of the Coast LLC, proprietor of the earlier EU word mark DUNGEONS & DRAGONS. The European Union Intellectual Property Office upheld the opposition and denied registration of DUNGEONS, finding that there was a likelihood of confusion with the earlier mark DUNGEONS & DRAGONS.

Due to provisions implementing the simple
stock company into Polish law, and provisions on “dematerialisation of
private joint-stock companies”, the Commercial Companies Code contains
cryptic wording on the option of maintaining a shareholder register for these
two types of companies, “in electronic form, as a dispersed and
decentralised database”.

We have addressed the question of this option repeatedly because it is potentially an opening for “tokenisation” of shares. This means that in a simple stock company or joint-stock company, shares can be issued as blockchain tokens. Simple rewording of two identical provisions in the Commercial Companies Code could therefore connect the world of decentralised registers and shareholdings, the latter being a concept recognised in law, in both of these types of joint-stock companies.

On 1 March 2020, the regulations on the simple stock company (PSA) will come into force. They will make it possible to keep a register of shareholders of such companies using blockchain technology. For some, this is a minor technical regulation, while for others it is a truly revolutionary breakthrough in the legal system, enabling tokenisation of shares in Polish companies. How will it really be?

In the summer of 2018, we had the opportunity to participate in the analysis of the draft PSA regulations by the Coalition for Polish Innovation. The provision on the possibility of maintaining a PSA’s register of shareholders using a dispersed and decentralised database was unexpectedly included in the draft and immediately met with considerable interest. It was a complete novelty in the Polish legal system. The surprise was all the greater as, at the same time, we observed the first activities of regulators aimed at limiting uncontrolled development of blockchain technology.

The provision allowing a register of PSA shareholders to be maintained on blockchain is not as revolutionary as it seems. We are a long way from full tokenisation and decentralisation of PSAs. This is determined by other PSA provisions showing much more attachment to traditional legal institutions. Nevertheless, this provision opens up a lot of new possibilities and creates space for interesting legal experimentation with blockchain technology. It is worth taking advantage of this opportunity to create solutions that in the future will encourage regulators and lawmakers to open up the legal system more courageously to the technology of decentralised registers.

Some time ago, Burger King announced that it was offering a mobile application allowing users to “burn” competing fast-food ads. By directing the device’s camera to a billboard, flyer or coupon showing the “right” competing logo, a smartphone user activates an augmented reality image of flames burning the competitor’s logo on the phone screen. In exchange for burning the competitor’s logo, the app generates a code entitling the user to receive a free sandwich at the Burger King chain. The launch of the app was supported by a promotional campaign, and a promotional video showing the operation of the app can be viewed online.