Week 12

Question 1

TRIPS Agreement on enforcement

Answer 1

art 41 (1) and (2) stipulates that:

1) Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse
2) Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

Question 2

Enforcement of rights:

Answer 2

• civil and administrative procedure and remedies
• provisional measures
• border measures
• criminal procedures

Question 3

Injunctions

Answer 3

mean that the judicial authorities will have the power to order a party to desist from an infringement, for example to prevent the entry into commercial circulation of infringing goods.

Question 4

Damages

Answer 4

can be imposed on the infringer to adequately compensate the right holders for the injuries suffered as a result of negligent or deliberate infringement of their rights.

Question 5

1

Answer 5

• prevent an infringement of an intellectual property right from occurring
• to preserve relevant evidence with regard to the alleged infringement

Question 6

EU Level

Answer 6

• The competence search
• The Border Measures Regulation
• The Enforcement Directive 2004

also: e-commerce directive (goods and services in the internet)
in the future (Probably): the Digital Single Market Directive

Question 7

The Enforcement DirectiveL

Answer 7

… all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the right holder by the infringement.

Question 8

Alternative:

Answer 8

.. in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorization to use the intellectual property right in question

Question 9

How to estimate value of IP rights?

Answer 9

• The CJEU on OTK case (C-367/15) either compensation for the damage that he has suffered, taking account of all the appropriate aspects of the paricular case, or, without (the right holder) having to prove the actual loss, payment of a sum corresponding to twice the appropriate fee which would have been due if permission had been given for the work concerned to be used.
• The problem was: thrice the appropriate fee in the event of a culpable infringement; twice in the event of non-culpaable infringement
• The Polish Constitutional Court held that the first one is unconstitutional; the later one was the question to the CJEU