A new Directive giving the EU stronger defences against intellectual property (IP) rights infringements was adopted by the Community legislator in April.
The new measures require all Member States to apply effective, proportionate and dissuasive measures, procedures and remedies against those engaged in counterfeiting and piracy. The new EU law will help create a level playing field for right holders in the EU. Member States will have two years to implement the Directive.
Enforcing ownership rights
Counterfeiting and piracy are modern plagues with a growing international dimension and an increasing link to organised crime. When intellectual property rights are not respected, there is less investment going into innovative industries, research and cultural promotion. Counterfeiters nowadays create fakes of any possible everyday product including CDs and DVDs. But when counterfeiters turn to medicines, toys, cosmetics, food and drink, for example, they produce items which may threaten public health and safety.
On 29 April 2004, the Council of Ministers and European Parliament adopted Directive 2004/48 on the enforcement of intellectual property rights, covering copyright and related rights, trademarks, designs, patents, geographical indications, etc.
The new Directive brings national legislation on civil measures, procedures and remedies closer into line with ‘best practice’ found in at least one Member State.
The Directive sets out, for example, a number of obligations which are of importance for establishing the infringement of an IP right such as provisions on evidence and the protection of evidence.
The legislation includes a right of information allowing judges to order certain persons to reveal the names and addresses of those involved in distributing the illegal goods or services, along with details of the quantities and prices involved.
Furthermore, right holders may order the seizure of goods suspected of infringing an IP right so as to prevent their movement within the channels of commerce. Other available remedies include the destruction, recall or permanent removal from the market of illegal goods.
The Directive sets out the principles that the infringer pays the right holder damages appropriate to the actual prejudice suffered as a result of the infringement, and that reasonable and proportionate legal costs should be paid by the unsuccessful party in court litigation.
As well as introducing benefits for right holders, the Directive contains appropriate safeguards against abuse, ensures the rights of the defence and includes references to the protection of personal data and confidential information.
Exchange of information
The EU law also signals to Member States other measures that should contribute significantly to the fight against counterfeiting and piracy such as the publication of judicial decisions and the development of professional codes of conduct. Member States will have to appoint national correspondents to cooperate and exchange information with other Member States and the Commission.
Although the Commission still believes that an effective fight against counterfeiting and piracy requires strong criminal sanctions, the adopted version of the Directive, unlike the original Commission proposal, does not contain provisions on criminal sanctions.
The issue of including criminal sanctions provisions in an Internal Market measure is currently under scrutiny at the European Court of Justice. The Commission will examine the possibility of proposing harmonisation measures providing for criminal sanctions in the future.
Further information at: http://www.europa.int/comm/internal_market/en/indprop/piracy/index.htm
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