Towards a Gradual and Binding Harmonization of Sanctions Under the CJEU

Marianne Levin

Towards a Gradual and Binding Harmonization of Sanctions Under the CJEU

Ur Nordiskt Immateriellt Rättsskydd nr 4 2024

Towards a Gradual and Binding Harmonization of Sanctions Under the CJEU[*]Introduction to the Session on Evidence in IP trials in the Nordics – Standard of proof and admissible evidence, respectively access to and seizure of evidence at the XXXVI Nordic NIR MEETING 1–3 September 2024. This text, now in written form, is based on an oral presentation, whose main merit is the compilation, overview and totality of the case-law on the Enforcement Directive (2008/48/EC) of the Court of Justice of the European Union 2008 to 2024. Even if slightly extended and added with some explanations and sources, it otherwise deviates from what would be considered academic standard with mainly excerpts of judgements. Instead, it could give the interested reader inspiration for further research, exploration and bases in legal proceedings. The following abbreviations are used throughout the presentation: AG: Advocate General; Art./Arts.: Article/Articles; Charter: Charter of Fundamental Rights of the European Union; CJEU: Court of Justice of the European Union; EU: European Union; IPR: Intellectual property rights; ISP: Internet Service Provider; SPC: Supplementary Protection Certificate (patent law). In addition, established short names are used for most cited directives but with a full number, such as the E-commerce Directive (2000/31/EC), the Infosoc Directive (2001/29/EC), etc. Italics are added.

By Marianne Levin[**]Professor emerita, jur. dr, fil. dr h.c. Stockholm University. Chair of SFIR (Svenska Föreningen för Immaterialrätt).

1. Background

For the present Nordic discussions on sanctions, a compilation of case-law to date under the Enforcement Directive (2004/48/EC), should make a relevant mutual background. As known, the Directive regulates (only)[1]Cf. Directive (EU) 2024/1226 of the European parliament and the council of 24 April 2024 on the definition of criminal offences and penalties for the violation of Union restrictive measures and amending Directive (EU) 2018/1673. civil sanctions and certain procedural issues within intellectual property law. It covers all types of such infringements.[2]Art. 2(1). In Europe, it all started with the Commission’s Green Paper on combating counterfeiting and piracy in the internal market of 15 Oct 1988. But as the intellectual property world is more complex than plain counterfeiting, there was need for more, which had already been recognised at the international level.

The background includes that in the 1980s, when IPR had become increasingly important in international trade, the lack of harmonization of sanctions as well as the application and standards for the level of protection of such rights became a problem in international economic relations, especially between developed and developing countries (including the least developed countries). This in turn led to the Uruguay Round (1986–1994) of the General Agreement on Tariffs and Trade (GATT). As a result of those negotiations, there was a new package of international trade treaties and protocols as well as a new international organisation, the World Trade Organization (WTO) in 1994. To GATT from 1947 was added GATS (General Agreement on Trade in Services) and TRIPS (Agreement on Trade-Related Intellectual Property Right),[3]Annex 1C to the Agreement establishing the WTO signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations. which entered into force for developed countries in 1995. And by the TRIPS Agreement, IPR got teeth.[4]This means that since 1994 TRIPS member governments must guarantee that IPR can be implemented to prevent or discourage infringement, according to the Agreement. The methods must be just and equal, as well as not overly cumbersome or expensive. They shall not impose unreasonable deadlines or unjustified delays. People concerned must be allowed to request a court review, an administrative decision or appeal a lower court’s judgement.

Du måste vara inloggad för att ta del av det här innehållet

Endast prenumeranter kan logga in på NIR, teckna en prenumeration för att få tillgång till NIR digitalt.

Logga in | Prenumerera

Webbinarier

2025-04-22

Tidskriften Nordiskt Immateriellt Rättsskydd (NIR) bjuder in till ett webbinarium på temat Långsamt farväl till specialitetsgrundsatsen

Notiser

Distinctiveness for non-traditional trademarks and the inherent distinctiveness for surface patterns (PMCA, PMÄ 14666-22)

Rättsfall | Sverige

In this case regarding a trademark application for a geometrical figure as a surface pattern, the PMCA provide guidelines in relation to distinctiveness in relation to surface trademarks, and particularly the assessment for its inherited distinctiveness. This case further elaborates on the responsibilities an applicant holds in relation to showing distinctiveness for signs, patterns or products that are not typically associated with being trademarks.

The balance of the law on the peace of the maritime grave at the wreck of Estonia and the journalistic interest (the Court of Appeal for Western Sweden, B 5637-22)

Rättsfall | Sverige

The balance of the law on the peace of the maritime grave at the wreck of Estonia and the journalistic interest (the Court of Appeal for Western Sweden, B 5637-22) Filip Jerneke and Stefan Widmark Introduction In this case, two persons were convicted for offence against the law on the peace of the maritime grave at the wreck of the passenger vessel Estonia after diving close to and filming the wreck for the purpose of making a documentary film. In this context, the most interesting aspect is how the court draws the line between the peace of the maritime grave and the journalistic interest.

Gross defamation – similar statements in different media resulting in different judgements (Stockholm District Court, B 568-21 and Svea Court of Appeal B 374-20)

Rättsfall | Sverige

Whether defamation is made in constitutionally protected or other media can have decisive effect. This is shown in two judgments from Stockholm District Court and the Svea Court of Appeal. The cases concern similar statements made relatively close in time by a woman about a man. However, the woman was convicted in one case but acquitted in the other.

Jaguar replica sportscar does not constitute copyright infringement

Rättsfall | Sverige

This case concerns a dispute between international car manufacturer Jaguar and a Swedish company, as well as the company's two owners, regarding allegations of copyright infringement in the defendants' production of a replica Jaguar C-Type sportscar.(1) The second-instance Patent and Market Court of Appeal reversed the first instance-court's decision and found that the replica did not constitute copyright infringement on two unusual grounds:

Till notiser