Lecture 7 - Intellectual Property and European Union Law
In the old situation, you had to go to courts in the different European countries to enforce your IP
rights. The countries had their own IP systems. Freedom of circulation of goods and persons, no
discrimination within the EU. The problem with different national IP rights is what you do with the
free circulation of goods. If you say we forget about it, a national IP right doesn’t mean much. If you
have a patent in the Netherlands while you’re a small company and an Italian makes a product which
comes to the Netherlands, your patent would be worthless. One of the exceptions to the free
circulation of goods was the exception of IP rights.
The best solution is that there would be one IP right throughout the whole EU (which we did for
trademarks and design rights), then you don’t have the problem of having a patent in one country
but not in the other. Enforcement rules are both in the trademark and design regulation. You can
enforce your right in one court, not a supranational European court but we have appointed national
European judges with regards to EU trademark and designs. We have not abolished national
trademark and design rights and you can still ask for a national right, so the problem still occurs here.
If you had a national right, it automatically became a Benelux-right. This is one way of overcoming
the conflict of EU being one territory and different national rights: you do it by way of Regulations.
You can also do it by harmonization (which we have done in trademark and design rights and to a
certain extent in patents: art. 69 EPC infringement and art. 138 EPC invalidity, material law).
Harmonization helps because at least the rights are in both aspects the same: especially those in
infringement and validity. Something that’s okay in France should be okay in the rest of Europe. This
is done by Directives: it directs the national legislations to change their law in order to be in
conformity with what the Directive says. Achieving complete harmonization or complete sane
interpretation of the Regulations of trademarks and designs is done through the obligation to ask
questions of interpretation to the CJEU. They influence the EU laws but also the national laws insofar
as they are governed by the Directives.
The CJEU is also a way of achieving to create one right since it interprets the treaties. In the
beginning, it had a very proactive role. The principle of the freedom of movement of goods is availing
in exhaustion. If I have a trademark in the Netherlands only and I put it on the market in Greece and
someone buys it and brings it to the Netherlands, I cannot invoke my right in the Netherlands. Even if
I have not enjoyed my right in Greece. For patents, this is the same. Having a Dutch patent and
putting it on the market in Greece (where you don’t have a patent), you can’t act against someone
who has it in the Netherlands. If the product was put on the market by a Greece producer by a third
party and then it goes to the Netherlands, you can stop it. It hasn’t been put on the market with the
rightsholder’s permission. These things have as a result that the freedom of circulation of goods has
become more important by these measures. The freedom of circulation of goods has improved by
the adoption of the exhaustion principle by the CJEU.
The Charter of Fundamental Rights gives you the right to your own property. Fundamental rights can
conflict: the freedom of speech and we know the freedom of enterprise. You see the famous case
between the access providers (The Pirate Bay) and those protecting the copyright holders (Brein).
Brein’s argument is that access providers giving access to The Pirate Bay promote copyright
infringement. Although the access providers themselves don’t commit infringement, they should
stop giving access to The Pirate Bay. This is decided by the CJEU since it’s based on a European law
which makes it possible to start such an action. Does the Pirate Bay commit copyright infringement?
They themselves point to the address where you can get them. Whether this is an infringement is
also decided by the CJEU since it’s based on a European harmonized law. The access providers invoke
In the old situation, you had to go to courts in the different European countries to enforce your IP
rights. The countries had their own IP systems. Freedom of circulation of goods and persons, no
discrimination within the EU. The problem with different national IP rights is what you do with the
free circulation of goods. If you say we forget about it, a national IP right doesn’t mean much. If you
have a patent in the Netherlands while you’re a small company and an Italian makes a product which
comes to the Netherlands, your patent would be worthless. One of the exceptions to the free
circulation of goods was the exception of IP rights.
The best solution is that there would be one IP right throughout the whole EU (which we did for
trademarks and design rights), then you don’t have the problem of having a patent in one country
but not in the other. Enforcement rules are both in the trademark and design regulation. You can
enforce your right in one court, not a supranational European court but we have appointed national
European judges with regards to EU trademark and designs. We have not abolished national
trademark and design rights and you can still ask for a national right, so the problem still occurs here.
If you had a national right, it automatically became a Benelux-right. This is one way of overcoming
the conflict of EU being one territory and different national rights: you do it by way of Regulations.
You can also do it by harmonization (which we have done in trademark and design rights and to a
certain extent in patents: art. 69 EPC infringement and art. 138 EPC invalidity, material law).
Harmonization helps because at least the rights are in both aspects the same: especially those in
infringement and validity. Something that’s okay in France should be okay in the rest of Europe. This
is done by Directives: it directs the national legislations to change their law in order to be in
conformity with what the Directive says. Achieving complete harmonization or complete sane
interpretation of the Regulations of trademarks and designs is done through the obligation to ask
questions of interpretation to the CJEU. They influence the EU laws but also the national laws insofar
as they are governed by the Directives.
The CJEU is also a way of achieving to create one right since it interprets the treaties. In the
beginning, it had a very proactive role. The principle of the freedom of movement of goods is availing
in exhaustion. If I have a trademark in the Netherlands only and I put it on the market in Greece and
someone buys it and brings it to the Netherlands, I cannot invoke my right in the Netherlands. Even if
I have not enjoyed my right in Greece. For patents, this is the same. Having a Dutch patent and
putting it on the market in Greece (where you don’t have a patent), you can’t act against someone
who has it in the Netherlands. If the product was put on the market by a Greece producer by a third
party and then it goes to the Netherlands, you can stop it. It hasn’t been put on the market with the
rightsholder’s permission. These things have as a result that the freedom of circulation of goods has
become more important by these measures. The freedom of circulation of goods has improved by
the adoption of the exhaustion principle by the CJEU.
The Charter of Fundamental Rights gives you the right to your own property. Fundamental rights can
conflict: the freedom of speech and we know the freedom of enterprise. You see the famous case
between the access providers (The Pirate Bay) and those protecting the copyright holders (Brein).
Brein’s argument is that access providers giving access to The Pirate Bay promote copyright
infringement. Although the access providers themselves don’t commit infringement, they should
stop giving access to The Pirate Bay. This is decided by the CJEU since it’s based on a European law
which makes it possible to start such an action. Does the Pirate Bay commit copyright infringement?
They themselves point to the address where you can get them. Whether this is an infringement is
also decided by the CJEU since it’s based on a European harmonized law. The access providers invoke
