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Developments (and Non-Developments) in the Harmonisation of EU Intellectual Property Law
Published online by Cambridge University Press: 27 October 2017
Abstract
This chapter begins by considering the challenges posed to the harmonisation of intellectual property law at the European level by the very different ways in which the law of intellectual property is viewed across Europe. It then goes on to review the various global and historical initiatives in the arena of intellectual property law harmonisation before running through the different areas of intellectual property law—trade marks, designs, copyright and patents—and examining the ways in which each of these has been dealt with at the European level, both by the European Union and by other Europe-wide bodies. In effect, the way in which intellectual property law has been addressed by the European Union represents a microcosm of the various possible approaches to harmonisation. As regards the prospect of future harmonisation of intellectual property law by the European Union, it is hoped that a wide and wise view of the issues will be taken, in order that public confidence in the Community’s intellectual property regime may be both justified and strengthened.
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- Research Article
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2009
References
1 ‘Intellectual assets and value creation’ OECD Synthesis Report (2008) 5, available at: http://www.oecd.org/dataoecd/36/35/40637101.pdf.
2 ‘Intellectual assets and value creation’ OECD Synthesis Report (2008) 12–13.
3 See, for example, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001 L167/10, Recital 19: ‘The moral rights of rightholders should be exercised according to the legislation of the Member States and the provisions of the Berne Convention for the Protection of Literary and Artistic Works, of the WIPO Copyright Treaty and of the WIPO Performances and Phonograms Treaty. Such moral rights remain outside the scope of this Directive’.
4 Promoting innovation through patents: Green Paper on the Community patent and the patent system in Europe (1997), 17; Commission Communication, Promoting innovation through patents: The follow-up to the Green Paper on the Community Patent and the Patent System in Europe (1999) 14–15.
5 EPC 2000, Art 69(1).
6 Aerotel Ltd v Telco Holdings Ltd and Macrossan’s Application [2006] EWCA Civ 1371; T0154/04 Duns Licensing Associates/Method of estimating product distribution (15 November 2006).
7 See below in the text relating to nn 54–61.
8 See, for example, ‘Industrial Property Rights: Commission launches strategy to drive innovation from the laboratory to the marketplace’, Press Release (16 July 2008) IP/08/1157.
9 The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958, at Stockholm in 1967, and was amended in 1979. Administered by WIPO, it currently has over 170 signatories.
10 For further details see Ladas, S, Patents, Trademarks and Related Rights —National and International Protection (Cambridge MA, Harvard University Press, 1975) chs 1–4 Google Scholar.
11 The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979. Administered by WIPO, it had 164 members as of October 2008.
12 The Madrid Agreement has been revised several times; most recently by the 1957 Nice Revision, and the Stockholm Revisions of 1967 and 1979.
13 Madrid Agreement, Art 1(2).
14 Like the Agreement, the Protocol is administered by WIPO. Although there are similarities between the two, there are also key differences.
15 The Madrid Protocol entered into force on 1 December 1995 and became operational on 1 April 1996. The Community trademark system became operational on the same date.
16 An intergovernmental organisation may become party to the Protocol, provided that the organization has a regional office for registering marks: Madrid Protocol, Art 14(1). The intention was to allow the Community Trade Mark Office (OHIM) to be designated, and thus to allow the Protocol to be used to obtain a CTM. Using the reverse process, a CTM may also be extended internationally, using a CTM application or a registered CTM as the basic mark for an international application. The EC’s accession entered into force on 1 October 2004—the first time that the EC as such had acceded to a WIPO treaty.
17 WIPO registers 900,000th mark under the international trademark system, WIPO Press Release 466 (27 October 2006).
18 The PCT was concluded in 1970, amended in 1979, and modified in 1984 and 2001. It is open to states party to the Paris Convention.
19 WIPO Press release (21 February 2008), ‘Unprecedented Number of International Patent Filings in 2007’ PR/2008/536.
20 European Patent Office, Annual Report 2006 (Statistics).
21 There are currently 34 member states.
22 See, to that effect, Case C-149/96 Portugal v Council [1999] ECR I-8395, paras 42–8; Joined Cases C-300/98 and C-392/98 Dior and Others [2000] ECR I-11307, paras 44 and 45; Case C-245/02 Anheuser-Busch [2004] ECR I-10989, para 54; Case C-238/06 P Develey Holding GmbH v OHIM [2007] ECR I-9375.
23 See below in the text relating to n 125.
24 A full review of the vast quantities of case law in all these fields is beyond the scope of this article. More detailed references may be found in Seville, C, EU Intellectual Property Law and Policy (Cheltenham, Edward Elgar Publishing, 2009)CrossRefGoogle Scholar.
25 OHIM Statistics of Community Trade Marks 2006.
26 For an application made online (over 80% of applications are now made this way) the fee is €900. The fee for a paper application is €1050.
27 First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, OJ 1989 L040/1 (TMD).
28 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, OJ 1994 L11/1 (CTMR).
29 A CTM application may be filed in any of the 23 languages of the Community. A second language must also be specified, which must be one of the five languages of the Office. If the application is filed in a language which is not one of the languages of the Office, the Office arranges to have the application translated into the nominated second language. The second language may also be used in opposition and cancellation proceedings. CTMR, above n 28, Art 115.
30 CTMR, above n 28, Art 38. The absolute grounds for refusal are stated in CTMR, above n 28, Art 7(1).
31 Ibid, Art 8(4).
32 Ibid, Art 91.
33 TMD, above n 27, Art 2; CTMR, above n 28, Art 4.
34 TMD, above n 27, Art 3(1)(b); CTMR, above n 28, Art 7(1)(b).
35 Case C-299/99 Koninklijke Philips Electronics NV v Remington Consumer Products [2002] ECR I-5475, paras 39 and 40.
36 Case C-383/99 P, Procter & Gamble Co v . OHIM [2001] ECR I-6251. I Kilbey, ‘“BABY_ DRY”: a victory for the ephemera of advertising’ [2002] European Intellectual Property Review 493; A Griffiths, ‘Modernising trademark law and promoting economic efficiency: an evaluation of the baby dry judgment’ [2003] Intellectual Property Quarterly 1.
37 Case C-363/99 Koninklijke KPN Nederland NV v Benelux-Merkenbureau (‘Postkantoor’) [2004] ETMR 57; Case C-265/00 Campina Melkunie BV v Benelux-Merkenbureau [2004] ECR I-1699 (‘Biomild’).
38 Case C-251/95 Sabel BV v Puma AG [1997] ECR I-6191.
39 TMD, above n 27, Art 4(1)(b); CTMR, above n 28, Art 8(1)(b).
40 Case C-251/95 Sabel BV v Puma AG [1997] ECR I-6191, para 18.
41 See Sherman, B and Bently, L, The Making of Modern Intellectual Property Law (Cambridge, Cambridge University Press, 1999) 63–94 Google Scholar.
42 Art 2(7). By Art 7(4) the minimum term of protection is 25 years.
43 See comments to this effect in the following: Case 144/81 Keurkoop BV v Nancy Kean Gifts BV [1982] ECR 2853; Case 238/87 Volvo AB v Erik Veng (UK) Ltd [1988] ECR 6211; Case 53/87 Consorzio Italiano della Componentistica di Ricambio per Autoveicoli (CICRA) and Maxicar v Régie Nationale des Usines Renault [1988] ECR 6039.
44 Green Paper on the Legal Protection of Industrial Design (June 1991) III/F/5131/91-EN.
45 OJ 1996 C142/5 (published with an explanatory memorandum as COM(96) 66 final, 21 February 1996).
46 Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs (‘Designs Directive’), OJ 1998 L289/28.
47 Ibid, Recital 8, Art 17. This failure to harmonise copyright protection for designs has been rightly criticised: Bently, L, ‘The shape of things to come: European Design Law’ in Coughlan, P (ed), European Initiatives in Intellectual Property Law (Dublin, Irish Centre for European Law, 1993) 63, 86–7Google Scholar.
48 Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (CDR), OJ 2002 L3/1, Recitals 3–5.
49 The substantive provisions of the Regulation are aligned with the respective provisions in the Directive: ibid, Recital 9.
50 Designs Dir, above n 46, Art 1(a); CDR, above n 48, Art 3(a).
51 Designs Dir, above n 46, Recital 14; CDR, above n 48, Recital 10.
52 See also V Saez, ‘The Unregistered Community Design’ [2002] EIPR 585.
53 CDR, above n 48, Recital 24.
54 Designs Dir, above n 46, Art 14.
55 Designs Dir, above n 46, Art 18.
56 CDR, above n 48, Art 110. See also ibid, Recital 13.
57 In 2000 the Commission undertook a consultation exercise on design protection for component parts of complex products in the motor vehicle sector, in the hope of reaching a voluntary agreement. After discussions with interested parties, the conclusion was that the positions of the parties would remain completely opposed.
58 Commission Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs, COM(2004) 582.
59 Ibid, Art 1.
60 See Industrial property: Commission proposes more competition in car spare parts market, Press release, IP/04/1101 (14 September 2004).
61 Committee on Legal Affairs, Report on the proposal for a directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs A6-0453/2007 (22 November 2007).
62 Single Market News: Copyright at the crossroads? (May 2005): http://ec.europa.eu/internal_market/smn/smn37/docs/special-feature_en.pdf.
63 Tilman Lueder (Acting Head of the Copyright Unit, DG Internal Market and Services), ‘Legislative and Policy Developments in the European Union’ (April 2005): http://ec.europa.eu/internal_market/copyright/docs/docs/fordham2005_en.pdf.
64 Copyright and Challenge of Technology —Copyright Issues Requiring Immediate Action (Green Paper 1988), COM/88/172.
65 Green Paper 1988, para 1.4.10.
66 Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (‘Software Directive’) OJ 1991 L122/42.
67 The original version, Directive 92/100, has now been replaced with a codified version: Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version), OJ 2006 L376/28.
68 Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ 1993 L248/15. Its implementation date was 1 January 1995.
69 Directive 93/98/EC, OJ 1993 L290/9 (in force 1 July 1995). Now replaced by Directive 2006/116 on the term of protection of copyright and certain related rights (codified version), OJ 2006 L372/12.
70 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (‘Database Directive’), OJ 1996 L77/20.
71 See also M Montagnani and Borghi, M, ‘Promises and pitfalls of the European copyright law harmonization process’ in Ward, D (ed), The European Union and the Culture Industries: Regulation and the Public Interest (Aldershot, Ashgate Publishing, 2008)Google Scholar.
72 For more detail and persuasive criticism see the IViR’s Study on the implementation and effect in member states’ laws of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (February 2007), available at http://ec.europa.eu/internal_market/copyright/docs/studies/infosoc-study_en.pdf.
73 For example, the Term Directive permits (but does not require) Member States to protect critical and scientific publications of works which have come into the public domain (Art 5), and photographs which are not original in the sense that they are the author’s own intellectual creation (Art 6).
74 For example, the important concept of ‘equitable remuneration’ is not defined in the Rental Directive. It was considered by the ECJ in Case C-245/00, Stichting ter Exploitatie van Naburige Rechten (SENA) v Nederlandse Omroep Stichting (NOS) [2003] ECR I-1251. The Court declined to dictate specific methods for determining payments, noting that Art 12 of the Rome Convention (the inspiration for the Community provision) left it to member states to determine the most relevant criteria within their territory. The Court did, however, stress that the Community concept of equitable remuneration must be interpreted uniformly in all member states.
75 Database Directive, above n 70, Art 1(2).
76 Ibid, Art 3(1).
77 Ibid, Art 5.
78 Ibid, Art 7(1).
79 Ibid, Art 10.
80 Reichmann, J and Samuelson, P, ‘Intellectual property rights in data’ (January 1997) 50 Vanderbilt Law Review 51 Google Scholar; Colston, C, ‘Sui Generis database right: ripe for review’ (2001) 3 Journal of International Law and Technology Google Scholar; J Lipton, ‘Databases as intellectual property: new legal approaches’ [2003] European Intellectual Property Review 139.
81 Case C-338/02 Fixtures Marketing Ltd v Svenska AB [2004] ECR I-10497; Case C-444/02 Fixtures Marketing Ltd v Organismos Prognostikon Agonon Podosfairou EG [2004] ECR I-10549; Case C-46/02 Fixtures Marketing Ltd v Oy Veikkaus Ab ECR I-10365; C-203/02 British Horseracing Board Ltd v William Hill Organization Ltd [2004] ECR I-10415. One commentator notes ‘the virtual elimination of the sui generis right after William Hill/Fixtures Marketing ’: R Clark, ‘Sui Generis database protection: a new start for the UK and Ireland?’ [2007] JIPL&P 97, 97.
82 Database Directive, above n 70, Art 7.
83 British Horseracing Board Ltd, above n 81, para 31.
84 Ibid, paras 79–80.
85 See, eg, the UK Court of Appeal’s efforts to understand and apply the ECJ’s reference in the BHB case itself: British Horseracing Board v William Hill Organization Ltd [2005] EWCA Civ 863. Pill LJ commented (para 45), ‘A distinction is drawn by the ECJ between “obtaining” and “verification” of material, on the one hand, and “creating” it, on the other (paragraphs 31 to 35 of ECJ judgment). I have some difficulty in understanding the use to which the word “create” is put in the judgment and, with respect, whether it is used consistently’. Compare also two recent cases on estate agents’ databases (although different rights were relied on in each case); the Dutch decision in ZAH (Arnhem City Court, Civil Division in summary proceedings, 16 March 2006), and the Norwegian decision in Finn No AS v Supersok AS [2007] ECDR 12.
86 British Horseracing Board Ltd, above n 81, para 78.
87 Ibid, paras 45–7.
88 For more see T Aplin, ‘The ECJ elucidates the database right’ [2005] Intellectual Property Quarterly 204; M Davison and P Bernt Hugenholtz, ‘Football Fixtures, Horseraces and Spinoffs: The ECJ Domesticates the Database Right’ [2005] EIPR 113; A Masson, ‘Creation of Database or Creation of Data: Crucial Choices in the Matter of Database Protection’ [2006] EIPR 261; J Jenkins, ‘Database rights’ subsistence: under starter’s orders’ [2006] JIPL&P 467. And see now Case C-304/07 Directmedia Publishing v Albert-Ludwigs-Universität Freiburg, judgment of 9 October 2008.
89 Database Directive, above n 70, Art 16(3).
90 DG Internal Market and Services working paper, First evaluation of Directive 96/9/EC on the legal protection of databases, para 1.4, available at http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf. See also the commissioned study, The implementation and application of Directive 96/9/EC on the legal protection of databases (2001), available at: http://ec.europa.eu/internal_market/copyright/docs/databases/etd2001b53001e72_en.pdf.
91 See data in Wu, J, ‘Art Resale Rights and the Art Resale Market: A Follow-up Study’ (1999) 46 Journal of the Copyright Society of the USA 531 Google Scholar. See also McAndrew, C and Dallas-Conte, L, ‘Implementing Droit de Suite (artists’ resale right) in England’ Research Report 23 (London, The Arts Council of England, 2002)Google Scholar.
92 Directive 2001/84 on the resale right for the benefit of the author of an original work of art (‘Resale Right Directive’), OJ 2001 L272/32, Recitals 8–9. For criticism of the Commission’s position see D Booton, ‘A critical analysis of the European Commission’s proposal for a directive harmonising the droit de suite’ [1998] IPQ 165.
93 Resale Right Directive, above n 92. Press Release (19 July 2001) ‘Commission welcomes adoption of the Directive on resale rights for the benefit of the authors of original works of art’ IP/01/1036.
94 Resale Right Directive, above n 92, Art 1(1).
95 Ibid, Art 8(1).
96 Ibid, Art 1(2), Art 1(4). Member States may provide that the relevant art market professional ‘shall alone be liable or shall share liability with the seller for payment of the royalty’.
97 Ibid, Art 3.
98 For the portion of the sale price up to €50,000 the rate is 4%. Then the rates are: 3% for the portion up to €200,000; 1% for the portion up to €350,000; a mere 0.5% for the portion up to €500,000, and a tiny 0.25% for any portion of the sale price exceeding €500,000: ibid, Art 4(1).
99 Ibid, Art 11(1).
100 Ibid, Art 8(2), (3).
101 For detail see J Cave, ‘An Overview of the European Artist’s Resale Right Directive and its implementation in the UK via the Artist’s Resale Right Regulations 2005’ [2006] Journal of Intellectual Property Law & Practice 242; C Lewis, ‘Implementing the artist’s resale right directive’ [2007] JIPL&P 298.
102 Commission Staff Working Paper on the review of the EC legal framework in the field of copyright and related rights, SEC(2004) 995.
103 EDiMA, the organisation representing online music providers, estimates that the direct cost of negotiating one single licence at €9.500 (20 internal man hours, external legal advice and travel expenses). Even assuming that mechanical rights and public performance rights in most Member States can be cleared with one society, the overall cost of the requisite licences per Member State would be 25 × €9.500 = €237.500. On the basis that a profit of €0.10 can be achieved per download, the online music provider would have to sell 2.37 million downloads merely to recover the cost associated with obtaining the requisite communication to the public and mechanical reproduction licenses. Quoted in Commission Communication to the Council, the European Parliament and the European Economic and Social Committee on the Management of Copyright and Related Rights in the Internal Market, COM(2004) 261 final, para 4.12.
104 COMP/38.698. CISAC has already removed the disputed clauses from its model contract. No fines were imposed.
105 Commission Recommendation of 18 October 2005 (2005/737/EC) on collective crossborder management of copyright and related rights for legitimate online music services, OJ 2005 L276.
106 European Commission, Monitoring of the 2005 Music Online Recommendation (Brussels, 7 February 2008)Google Scholar.
107 Copyright in the Knowledge Economy, COM(2008) 466/3.
108 Press Release (14 February 2008), ‘Commission to launch fresh look at Copyright Levies’ IP/08/238.
109 ‘It seems that performers are regarded by some people as mere ‘interpreters’ of the works which they record. But making recordings is not simply a mechanical process. It is a creative process in its own right. Surely the creativity of the artists whose performances breathe life into the authors’ works is worthy of recognition for at least the same period?’: Submission by Sir Cliff Richard to the European Commission on working paper SEC(2004) 995 (19 July 2004).
110 Commission staff working paper on the review of the EC legal framework in the field of copyright and related rights, SEC(2004) 995 (19 July 2004).
111 Press Release (14 February 2008), ‘Performing artists—no longer be the “poor cousins” of the music business’ IP/08/240. See also Press Release (16 July 2008), ‘Intellectual Property: Commission adopts forward-looking package’ IP/08/1156. The proposal itself, COM(2008) 464, may be found at: http://ec.europa.eu/internal_market/copyright/docs/term/proposal_en.pdf. For an empirical study which contradicts the Commission’s reasoning in support of its proposal see the Review of the Economic Evidence Relating to an Extension of the Term of Copyright in Sound Recordings, produced by the Centre for Intellectual Property and Information Law, University of Cambridge: concerning the Term of Protection for Copyright and Related Rights (2008), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1288620.
112 Press Release (23 April 2009), ‘Music copyright to be extended to 70 years for performers’: http://www.europarl.europa.eu/news/expert/infopress_page/058-54192-111-04-17-90920090422IPR54191-21-04-2009-2009-false/default_en.htm.
113 Copyright in the Knowledge Economy, COM(2008) http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf. See also N Helberger, N Dufft, S van Gompel and B Hugenholtz, ‘Never forever: why extending the term of protection for sound recordings is a bad idea’ [2008] EIPR 174; ‘Creativity stifled? A joint academic statement on the proposed copy right term extension for sound recordings’ [2008] EIPR 341; Comment by the Max-Planck Institute on the Commission’s proposal for a Directive to amend Directive 2006/116 EC of the European Parliament and Council) 466/3.
114 Lueder, Tilman (Head of the Copyright Unit DG Internal Market and Services), How can copyright policy foster market entry and innovation? (Vienna, March 2006)Google Scholar.
115 For further thoughts, see M Walter, ‘Updating and consolidation of the Acquis: the future of European Copyright’, available at: http://ec.europa.eu/internal_market/copyright/docs/conference/2002-06-santiago-speech-walter_en.pdf.
116 Case C-431/05 Merck Genéricos—Produtos Farmacêuticos Lda v Merck & Co Inc, Merck Sharp & Dohme Lda [2007] ECR I-7001, para 40. There have been some limited secto ral interventions. Regulations have been enacted in the fields of medicinal products and plant protection products, creating a form of sui generis protection. The Biotechnology Directive does regulate one self-contained element of patent law; the patentability of biotechnological inventions: Regulation 1768/92 concerning the creation of a supplementary protection cer tificate for medicinal products, OJ 1992 L182/1; Regulation 1610/96 concerning the creation of a supplementary protection certificate for plant protection products, OJ 1996 L198/30; Directive 98/44/EC on the legal protection of biotechnological inventions (‘Biotech Dir’), OJ 1998 L213/13.
117 Press Release (3 April 2007), ‘Commission sets out vision for improving patent system in Europe’ IP/07/463.
118 Agreement dated 17 October 2000 on the application of Article 65 EPC (‘London Agreement’). So far, Denmark, France, Germany, Liechtenstein, Luxembourg, Monaco, the Netherlands, Sweden, Switzerland and the United Kingdom have ratified the London Agreement. Croatia, Iceland, Latvia, and Slovenia have acceded to it.
119 Its formal title is ‘the Draft Agreement on the establishment of a European patent litigation system’: http://patlaw-reform.european-patent-office.org/epla/.
120 Press Release (3 April 2007) Commission proposes the creation of a Community Patent IP/00/714.
121 Press Release (16 January 2006) Internal Market: Commission asks industry and other stakeholders for their views on future patent policy IP/06/38.
122 Future Patent policy in Europe, public hearing —12 July 2006: preliminary findings.
123 SPEECH/06/786 Charlie McCreevy, EU Patent Strategy (PanEuropean Intellectual Property Summit, 7 December 2006).
124 Press Release (3 April 2007) Patents: Commission sets out vision for improving patent system in Europe IP/07/463. Communication from the Commission to the European parlia ment and the Council—Enhancing the patent system in Europe, COM(2007) 165, 4.
125 Communication from the Commission to the European parliament and the Council— Enhancing the patent system in Europe, COM(2007) 165, 11.
126 11270/08 Draft Agreement on the European Union Patent Court (30 June 2008) (‘EPC Draft Agreement’), available at: http://register.consilium.europa.eu/.
127 Communication from the United States, ‘Article 27.3(b), relationship between the TRIPS agreement and the Convention on Biological Diversity and the protection of traditional knowledge’ IP/C/W/434 (26 November 2004).
128 See Commission Communication, The implementation by the EC of the ‘Bonn Guidelines’ on access to genetic resources and benefit-sharing under the Convention on Biological Diversity, COM(2003) 821, 18.
129 WTO TN/IP/W/11.
130 Press Release (28 August 2003) ‘WTO talks: EU steps up bid for better protection of regional quality products’ IP/03/1178.
131 WTO TN/IP/W/10.
132 For a factual account of the arguments presented see WTO TN/IP/W/12/Add.1 (4 May 2007).
133 Case 24/67 Parke Davis & Co v Probel [1968] ECR 55; Case 119/75 Terrapin (Overseas) Ltd v Terranova Industrie CA Kapferer & Co [1975] ECR 1039.
134 See W Cornish, J Drexl, R Hilty and A Kur, ‘Procedures and remedies for enforcing IPRs: the European Commission’s proposed Directive’ [2003] EIPR 447; C-H Massa and A Strowel, ‘The scope of the proposed IP Enforcement Directive: torn between the desire to harmonise remedies and the need to combat piracy’ [2004] EIPR 244; Kur, A, ‘The Enforcement Directive—rough start, happy ending?’ (2004) 35 International Review of Intellectual Property and Competition Law 821 Google Scholar.
135 Directive 2004/48/EC on the enforcement of intellectual property rights, OJ 2004 L195/16.
136 Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights, COM(2006) 168 final.
137 See, for example, Committee on Legal Affairs, Report on the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (27 March 2007) A6-0073/2007.
138 It should be noted that Community regimes compete with national systems in some respects. National offices have responded to this regulatory competition in various ways, often by making their own schemes simpler, more accessible, and perhaps by facilitating compatibility with Community schemes. Although this brings benefits in some cases, the criticism has sometimes been levelled that this phenomenon drives national schemes towards adopting lower standards.
139 W Kingston,’Intellectual Property in the Lisbon treaty’ [2008] EIPR 439, 440. See also C Geiger ‘Intellectual property shall be protected!?—Article 17(2) of the Charter of Fundamental Rights of the European Union: a mysterious provision with an unclear scope’ [2009] EIPR 113.
140 Legrand, P, ‘A Diabolical Idea’ in Hartkamp, A et al (eds), Towards a European Civil Code, 3rd edn (Nijmegen, Kluwer Law International, 2004) 272 Google Scholar.