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9 results

Enforcement of Intellectual Property Rights in the EU Member States
  • Edited by Flip Petillion
  • Published by:
    Intersentia
    Published online:
    12 April 2019
    Print publication:
    31 January 2019
  • Enforcement of Intellectual Property Rights in the EU Member States provides a timely overview and thorough analysis of intellectual property rights enforcement in the EU Member States. Taking legal action in one or several countries in the EU to enforce intellectual property rights is quite a challenge. The adoption of European Directive 2004/48/EC on the Enforcement of Intellectual Property Rights was meant to put a halt to considerable discrepancies in national legislations which caused uncertainty and a difference in enforcement between the EU Member States. The Enforcement Directive aimed to create a level playing field and to ensure a high, equivalent and homogeneous level of intellectual property protection across the EU. Over the past decade, the Enforcement Directive has been transposed into all EU Member States, in national legislation and through its application in national and EU case law. Both are essential to understand the Enforcement Directive's actual scope of application. In order to prepare and undertake an action in different countries - potentially simultaneously - knowledge of national legislation, local custom and practice, as well as procedural law, national and EU case law is essential. This book is a collaborative effort of lawyers from top tier firms from all 28 EU Member States. It is a valuable resource for both practitioners - who are active cross-border and internationally - and general counsel - who seek an in-depth analysis of the legal landscape across the EU.

  • Annex: Directive 2004/48/EC

  • Edited by Flip Petillion
  • Book:
    Enforcement of Intellectual Property Rights in the EU Member States
    Published by:
    Intersentia
    Published online:
    12 April 2019
    Print publication:
    31 January 2019, pp 1231-1243

  • Summary

    THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

    Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

    Having regard to the proposal from the Commission,

    Having regard to the opinion of the European Economic and Social Committee,

    Aft er consulting the Committee of the Regions,

    Acting in accordance with the procedure laid down in Article 251 of the Treaty,

    Whereas:

  • The achievement of the internal market entails eliminating restrictions on freedom of movement and distortions of competition, while creating an environment conducive to innovation and investment. In this context, the protection of intellectual property is an essential element for the success of the internal market. The protection of intellectual property is important not only for promoting innovation and creativity, but also for developing employment and improving competitiveness.

  • The protection of intellectual property should allow the inventor or creator to derive a legitimate profi t from his/her invention or creation. It should also allow the widest possible dissemination of works, ideas and new know-how. At the same time, it should not hamper freedom of expression, the free movement of information, or the protection of personal data, including on the Internet.

  • However, without effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished. It is therefore necessary to ensure that the substantive law on intellectual property, which is nowadays largely part of the acquis communautaire, is applied effectively in the Community. In this respect, the means of enforcing intellectual property rights are of paramount importance for the success of the internal market.

  • At international level, all Member States, as well as the Community itself as regards matters within its competence, are bound by the Agreement on trade-related aspects of intellectual property (the TRIPS Agreement), approved, as part of the multilateral negotiations of the Uruguay Round, by Council Decision 94/800/EC3 and concluded in the framework of the World Trade Organisation.

  • The TRIPS Agreement contains, in particular, provisions on the means of enforcing intellectual property rights, which are common standards applicable at international level and implemented in all Member States. This Directive should not affect Member States’ international obligations, including those under the TRIPS Agreement.

  • Chapter 1 - Genesis, Adoption and Application of European Directive 2004/48/EC

  • Edited by Flip Petillion
  • Book:
    Enforcement of Intellectual Property Rights in the EU Member States
    Published by:
    Intersentia
    Published online:
    12 April 2019
    Print publication:
    31 January 2019, pp 1-48

  • Summary

    PART I. FRAMING THE ENFORCEMENT DIRECTIVE

    The legislative harmonisation of Intellectual Property (IP) rights in the European Union (EU) has been a work-in-progress since the publication of the Preliminary Draft Convention on a European Patent Law in 1962. Almost a century before that, two international initiatives, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), already strived to overcome the obstacles that diverging national IP laws posed for increasing globalisation and international economic and cultural transactions. Belgium has stood at the forefront in all of these initiatives.

    While these two conventions and subsequent international and European initiatives introduced a significant harmonisation of substantive IP rights, they only provided for general enforcement standards. This resulted in disparities between national IP enforcement mechanisms. Directive 2004/48/ EC (Enforcement Directive), adopted on 29 April 2004, aimed to resolve these disparities by harmonising the legislative systems of the European Member States with a view to ensuring a high, equivalent and homogenous level of IP protection throughout the internal market. The Enforcement Directive put forward a legal framework for protection, based on best practices of the Member States, which required the implementation of specific effective, proportionate and dissuasive enforcement measures. Its specific purpose was to tackle wide-scale piracy and counterfeiting infringements and to create a level playing field for IP rightholders in the EU. The adopted provisions of the Enforcement Directive were oft en based on already existing enforcement principles contained in the TRIPS Agreement, but also in existing legislation of several Member States.

    Although the legislative adoption procedure of the Enforcement Directive was swift, it was not without controversy. The initial proposal by the European Commission provoked serious public concern, with several civil rights organisations opposing it. The proposed directive was subsequently amended, taking into account the main points of criticism, especially with regard to the right of information and to the criminal sanctions proposed. Without delay and without requiring further reading of the document, the European Parliament and Council adopted the Enforcement Directive little more than a year after the publication of the Commission's initial proposal.

  • Preface And Acknowledgements

  • Edited by Flip Petillion
  • Book:
    Enforcement of Intellectual Property Rights in the EU Member States
    Published by:
    Intersentia
    Published online:
    12 April 2019
    Print publication:
    31 January 2019, pp vii-viii

  • Summary

    There was a time at which it was quite a challenge to take action in one or several countries in the European Union to enforce intellectual property rights. Despite the various IP enforcement provisions in the international Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS Agreement), there were considerable discrepancies in national legislation which caused uncertainty and a difference in enforcement levels between the EU Member States. Several countries were labelled as “IP Infringement (counterfeit) safe havens”. It was very difficult to untangle the knots out of the tangle of rules in cross-border disputes. Non-European holders of intellectual property rights had an even heavier task to enforce intellectual property rights effectively in the EU.

    To respond to this, there was a call for harmonisation of national legislation in the field of the protection and enforcement of intellectual property rights. One way to introduce an equivalent level of protection in all Member States was to adopt a European directive. Like the EU institutions’ other legal instruments, directives are intended to achieve the objectives of the EU treaties which include security and justice, without internal borders; a highly competitive market economy; and developing an economic and monetary union.

    A directive is a legal instrument that aims to harmonise the rules of the Member States. Unlike a European regulation, it does not have a direct effect in all EU Member States and must be implemented into national legislation. A directive requires Member States to achieve a particular result. However, the Member States themselves are free to adopt legislation and to choose the means by which to achieve that objective.

    Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights, 29 April 2004, OJ L 195, 16 (Enforcement Directive) was adopted for the enforcement of intellectual property rights in the EU specifically. It aimed to create a level playing field and ensure a high, equivalent and homogeneous level of intellectual property protection in the EU. The Enforcement Directive provided for ‘minimum harmonisation’ rules. This means that while the Member States were required to at least provide for the measures, procedures and remedies laid down in the Directive, they were free to exceed the threshold of the Enforcement Directive by incorporating stricter measures and increasing the levels of protection enshrined in its provisions.

  • Chapter 3 - Enforcement of Intellectual Property Rights in Belgium

  • Edited by Flip Petillion
  • Book:
    Enforcement of Intellectual Property Rights in the EU Member States
    Published by:
    Intersentia
    Published online:
    12 April 2019
    Print publication:
    31 January 2019, pp 93-152

  • Summary

    INTRODUCTION

    Belgium has observed high standards for the protection of Intellectual Property (IP) rights since well before the implementation of Directive 2004/48/EC of 29 April 2004 on the Enforcement of Intellectual Property Rights (Enforcement Directive). Belgian law already provided for many of the measures, procedures and remedies required by the Enforcement Directive, such as those relating to evidence, precautionary measures and injunctions, counterfeit seizure and corrective measures. As a result, IP protection and enforcement in Belgium has sometimes been recognised as a ‘best practice’ for the Enforcement Directive's adoption. The implementation of the Directive did, however, provide for additional IP protection measures and further refi ned and harmonised enforcement measures, procedures and remedies across the different IP rights.

    The harmonisation of the available measures, procedures and remedies was one of the most important changes that followed the implementation of the Enforcement Directive. As a result, the same measures are now generally available to holders of all IP rights. This includes trademarks and designs rights, which are governed at the level of the Benelux on the basis of a Convention with the Netherlands and Luxembourg. This Convention was also amended to implement the necessary provisions for the protection and enforcement of Benelux trademarks and designs. The Belgian legislator later consolidated the harmonised IP laws into a single IP code to provide further protection and transparency to IP rightholders. As a result, rightholders can rely upon several distinct measures and procedures to protect and to enforce their different IP rights in Belgium in accordance with the provisions of the Enforcement Directive.

    The different IP rights that are recognised and protected in Belgium are: patents, supplementary protection certificates, plant variety rights, copyright and related rights, database producers’ rights, rights to topographies of semiconductors, trademark rights and design rights. The last two, trademarks and designs, are governed on a Benelux or EU level. Specific protection is also provided to domain names and trade secrets, although they are not considered IP rights.