S21 Enforcement

Question 1

Jurisdiction according Agreement on a Unified Patent Court

Answer 1

Is not in force yet.

Applies inter alia in respect of European patents with unitary effect and European patents granted according to EPC.

The Unified patent court will have exclusive competence in respect of:
actions for actual or threatened infringements of patents and related defences;
actions for declarations of non-infringement of patents;
actions for provisional and protective measures and injunctions;
actions for revocation of patents and counterclaims for revocation of patents;
actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the invention.

Question 2

Proceedings shall be brought

Answer 2

Proceedings shall be brought:
DEFENDANT
in the courts of the Member State in which the defendant is >domiciled< or, if he is not domiciled in any of the Member States, in any Member State in which he has an >establishment

Question 3

Enforcement usually involves sets of questions concerning:

Answer 3

jurisdiction (forum)
applicable substantive law
available types of remedies.

Question 4

choise of jurisdiction

Answer 4

Jurisdiction is chosen basing on provisions of Brussels I Regulation 2015. which court has jurisdiction.

Question 5

Applicable substantial law

Answer 5

Applicable substantial law is chosen basing on Rome I Regulation or Rome II Regulation

Question 6

Types of enforcement

Answer 6

Types of enforcement can be found in TRIPS, Border Measures Regulation, Enforcement Directive, UPC, national substantive & procedure law.

Question 7

3 types of jurisdiction in Brussels I

Answer 7

Brussels I:

(1) General jurisdiction
(2) Special jurisdiction
(3) Exclusive jurisdiction

Question 8

Domiciled member can be sued in a different member state when

Answer 8

in matters relating to a contract, in the courts for the place of performance of the obligation in question;
where he is one of a number of defendants, in the courts for the place where any one of them is domiciled provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments;
as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings.

Question 9

Juristiction concerning EU TM

Answer 9

1. defendant is domiciled
2. defendant has establishment
3. defendant is not domiciled or has establishment.

THEN

4. where the plaintiff is domiciled
5. plaintiff is established

THEN
if neither plaintiff of defendant has domcile or stablishment
6. EUIPO has its seat.

Question 10

Rome I

Answer 10

Freedom of choice/choice of applicable law by the parties of contract.

Applicable law in the absence of choice

Contract for the sale of goods - the law of the country where the seller has his habitual residence.

Contract for the provision of services - the law of the country where the service provider has his habitual residence.

Franchise contract - the law of the country where the franchisee has his habitual residence.

Distribution contract - the law of the country where the distributor has his habitual residence.