Enforcement Directive

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Directive 2004/48/EC
European Union directive
TitleDirective on the enforcement of intellectual property rights
Made byEuropean Parliament & Council
Made underArt. 95
Journal referenceL157, 2004-04-30, pp. 32 – 36
L195, 2004-06-02, pp. 16 – 25
History
Date made2004-04-29
Came into force2004-05-20
Implementation date2006-04-29
Preparative texts
EESC opinionC32, 2004-02-05, p. 15
Reports 
Other legislation
Replaces—
Amends—
Amended by—
Replaced by—
Current legislation

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (also known as "(IPR) Enforcement Directive" or "IPRED") is a

Single Market provisions of the Treaty of Rome
. The directive covers civil remedies only—not criminal ones.

Under Article 3(1), Member States can be censured in the

costs and judicial publication
.

Subject-matter and scope

The Directive requires all Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy.[1] Thus, the purpose of the instrument is to regulate enforcement of intellectual property rights, not the rights themselves. The Directive leaves unaffected the substantive provisions on intellectual property, international obligations of the Member States and national provisions relating to criminal procedure and criminal enforcement.

The subject-matter of the Directive is defined in Article 1. It applies to enforcement of intellectual property rights which include industrial property rights. The scope of the Directive is defined in Article 2. It applies to all infringements of IP rights in Community and national law, without precluding more stringent protection that the Community or national law may otherwise grant.

The general obligation in the Directive is to provide for remedies necessary to enforce intellectual property rights.[2] These shall be "fair and equitable" and must not be "complicated or costly, or entail unreasonable time-limits or unwarranted delays". They must furthermore be effective, proportionate and dissuasive and must not act as barriers to trade.

The persons who are entitled to apply for the remedies are primarily the holder of intellectual property right, but also any person authorised to use it, such as licencees and intellectual property rights.[3] Collective rights management and professional defence bodies may also have the right under certain circumstances.[4]

Evidence

Section 2 of the Directive deals with the evidence. Article 6 gives the power to the interested party to apply for evidence regarding an infringement that lies in the hands of the other party to be presented. The only requirement is for that party to present "reasonably available evidence sufficient to support its claim" to courts. In case of an infringement on a commercial scale, Member States must also take steps to ensure that "banking, financial or commercial documents" of the opposing party are presented. In both cases confidential information shall be protected.[5]

Measures for preserving evidence are available even before the proceedings commence. Article 7 provides that such measures may be granted under the same conditions as under Article 6 and include provisional measures such as "the detailed description, with or without the taking of samples, or the physical seizure" not only of the infringing goods (such as

Anton Piller
orders and in France as "saisie-contrefaçons".

Provisional and precautionary measures

At the request of an applicant, the judicial authorities may issue an

Information Society Directive
and are, in principle, subject to national law.

Apart from the ordinary injunctions of the previous paragraph there also exist the so-called

Anton Piller
orders, their use is confined mostly to the UK.

Article 9(2) provides that, in the case of an infringement on a commercial scale, judicial authorities may order a precautionary seizure of "movable and

immovable property
" which includes freezing the bank accounts and other assets. This may only be done if the applicant demonstrates that it is likely that recovery of damages will be endangered. Further to that, documents relating to banking and other financial transaction may be communicated.

Implementation

The provisions of the Directive were due to be implemented in all member states of the European Union by 29 April 2006. However, a number of states have not completed the necessary steps.[9]

The Directive has been implemented into United Kingdom law by the Intellectual Property (Enforcement, etc.) Regulations 2006.

Swedish parliament voted to implement the Directive on 26 February 2009, and it went into force on 1 April 2009.[13]

Criticism

The Directive has been widely criticised for what opponents called a draconian approach similar to the United States' Digital Millennium Copyright Act (DMCA).[14][15][16] In fact, the criticism was so strong—especially from the telecommunications industry and parts of computer industry—that the original draft was substantially modified.[17] A number of problems still remain in the final document, according to the international civil liberties organisation IP Justice.[18]

Examples of cases wherein the provisions of the Directive have been applied

In the 2007 Princo Corporation, Ltd v Koninklijke Philips Electronics case before the Court of Genoa, Italy, the Dutch company Philips, owner of patents on CD-R technology, requested and obtained an order of precautionary seizure over all Princo's movable and immovable property, including its bank accounts, with a view to ensuring the recovery of damages to be awarded at the end of the liability proceedings.[23]

A judgement in the case of

counterfeit goods within their facilities, in order to prevent infringements of intellectual property rights by the market-traders.[25]

See also

References

  1. ^ Article 3(2)
  2. ^ Article 3(1)
  3. ^ Article 4
  4. ^ Article 4(c) and (d)
  5. ^ Article 6
  6. ^ a b Article 7.1
  7. ^ Article 9(1)
  8. ^ Social Science Research Network – selected case law
  9. ^ IPEG blog, Summary of the implementation of Directive 2004/48 on the enforcement. of intellectual property rights (the “Directive”) in EU Member States as per October 2006 Archived 3 March 2016 at the Wayback Machine, Simmons & Simmons, October 2006. [needs update]
  10. ^ Office of Public Sector Information, Statutory Instrument 2006 No. 1028, The Intellectual Property (Enforcement, etc.) Regulations 2006 Archived 19 May 2007 at the Wayback Machine
  11. ^ Staatsblad 2007, 108.
  12. ^ Décret no 2008-624 du 27 juin 2008 pris pour l'application de la loi no 2007-1544 du 29 octobre 2007 de lutte contre la contrefaçon et portant modification du code de la propriété intellectuelle (in French).
  13. ^ (in Swedish) Justitiedepartementet, Lagändringar angående civilrättsliga sanktioner på immaterialrättens område Archived 4 April 2009 at the Wayback Machine, regeringen.se, 1 April 2009.
  14. ^ University of Cambridge Association Electronique Libre (AEL) Archived 25 January 2012 at the Wayback Machine
  15. ^ The Draft IP Enforcement Directive – A Threat to Competition and to Liberty – Ross Anderson, Foundation for Information Policy Research
  16. ^ SSRN-Intellectual Property Rights in Digital Media: A Comparative Analysis of Legal Protection, Technological Measures and New Business Models Under E.U. And U.S. Law by Nicola Lucchi
  17. ^ "0309ma". Archived from the original on 12 February 2007. Retrieved 24 April 2007. and [1]
  18. ^ IP Justice Archived 2 May 2007 at the Wayback Machine
  19. ^ Ross Anderson
  20. ^ "ZDNet News". Archived from the original on 16 January 2007. Retrieved 2 January 2007.
  21. ^ BBC Analysis
  22. ^ "fipr.org". Archived from the original on 5 December 2006. Retrieved 2 January 2007.
  23. doi:10.1093/jiplp/jpm149
    .
  24. ^ InfoCuria, L’Oréal SA and others v. eBay International AG, 12 July 2011, accessed 1 January 2022
  25. ^ Palmer Biggs IP Solicitors, Tommy Hilfiger Licensing LLC & Others v Delta Center A.S. - Case C-494/15, judgment 8 July 2016, accessed 1 January 2022

External links

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