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Abstract by the author: The purpose of this article is to dissect the nature of intellectual property rights in the context of private international law. In other words, the primary focus is how private international law, i.e., conflict of laws, from the perspective of jurisdiction, applicable law, and enforcement rules have been developed and applied to intellectual property rights. As such, the principal question that this article examine is to understand the extent and impact intellectual property rights, when examined from the lens of private international law (conflict of laws), have on the wider process of private law in global governance.
Abstract by the authors: This opinion aims at examining the Text and Data Mining (TDM) process and its legal aspects in the context of the Commission’s proposal for a Directive on Copyright in the Digital Single Market, which introduces in its Art. 3 a mandatory exception to copyright allowing for the carrying out of text and data mining of protected works. The discussion starts with the examination of several critical questions. At which stage of the TDM process are intellectual property rights affected? Do already existing exceptions and limitations apply to some TDM activities and techniques? What are the problems faced by researchers in applying them? This paper then considers the potential of a new mandatory TDM exception to drive innovation in the EU. The advantages of introducing an ‘‘open clause’’ on top of an enumerated list of exceptions to address some of the related problems are also reviewed. The study provides an in-depth analysis of the Commission’s Proposal, assesses its positive and negative impacts, and provides some suggestions for possible improvements. It concludes by recommending a more ambitious reform with regard to TDM in order to get the EU into shape for the age of Big Data.
Abstract by the author: The new trade mark law texts of the European Union aim, inter alia, at overruling the doctrine proposed by the EU Court of Justice in a long series of decisions – most notably Montexand Philips and Nokia– in relation to trade mark law and goods in transit. The wording of the new texts seems to impose on the trademark holder requesting the blocking of goods in transit, only the burden of proof of the existence of his trade mark right and of its infringement in the country of transit. The author suggests the possibility of an alternative interpretation, according to which the trade mark holder, in order to obtain the blocking of goods, must also give at least a prima facie evidence of the infringement of his right in the country of final destination. The reasons for this interpretation are identified in the principle of freedom of transit imposed by the GATT, in the general rules on the burden of proof, and in the principle of the proximity of the evidence. In conclusion, the author signals that the new rules are not technically justified by specific lines of trade mark law, hence they could be extended easily – by the legislator or by case law – to all other intellectual property rights
Abstract by the author: A bad compromise is better than a successful lawsuit, says an adage. Would this also apply to intellectual property disputes? Mediation is a dispute resolution method, which is in vogue. It became subject to harmonisation in Europe under Directive 2008/52/EC of the European Parliament and of the Council of 21May 2008 on certain aspects of mediation in civil and commercial matters. In this context, the objective of the article is to analyse the functions performed by mediation as well as the limitations to mediation from the viewpoint of civil procedure law, contract law and intellectual property law and to present some proposals to optimise mediation for intellectual property law. A number of legal systems, institutions and dispute resolution providers will be covered with the focus on the European Union, France and the UK.
Abstract by the authors: This article deals with the EU certification mark, which is a new development in EU trademark law introduced by amendments to Regulation 207/2009 on EU trade marks. The article describes the basic purpose of certification marks, which is to certify the characteristics of goods and services, and compares them with other types of marks (ordinary and collective trademarks). The conditions that need to be met in order to obtain an EU certification mark are emphasised. In this context several issues are discussed, especially those regarding the ownership of certification marks and the related rules under which the trade mark owner is prohibited from performing business involving the supply of goods or services of the kind certified, ambiguities surrounding the concept of the certifying body, the co-existence of an ordinary mark, and the restrictions regarding the use of certification marks. The authors believe that a certifying body as a term used in the amended Regulation 207/2009 should encompass the owner as well as third parties authorised to monitor the use of EU certification marks, and that the co-existence of a mere ‘‘plain’’ ordinary mark registered for the same goods or services as certified or a filed application thereof should be a reason for refusal of registration or its invalidity.
Abstract by the author: Considering the weight given to exceptions and limitations in current intellectual property research, this paper endeavours to explore sui generis design rights from the standpoint of limitations to their scope of protection. This paper focuses on the current EU framework with insights from its travaux préparatoires, comparing it to several other legislations and international instruments. A primary assessment shows that these limitations have a reduced interference with the scope of protection, and stem from a copyright or patent approach to the hybrid subject matter of designs. This paper further explores situations where the interaction between the scope of design protection and its limitations to design rights triggers conflicts. It examines in particular the recent autonomous interpretation by the ECJ of the limitation authorising reproduction for the purpose of citation.
Abstract by the author: What happens when a breakdown in relations results in mutually possessed objectives becoming harder to achieve? This article explores the consequences of the UK's withdrawal from the EU for intellectual property (IP) law and policy. Compared with other fields such as Economic and Monetary Union and the development of the EU's ‘social chapter’, the UK has been a supportive and proactive player in internal market integration, particularly pertaining to IP protection. As a result of ‘Brexit’, the EU may find that the impetus for further harmonization and integration in this field is lost, such as with the EU unitary patent. However, the consequences for the UK are likely to be more severe – a loss of influence, both over laws that govern it and in exporting IP norms internationally, as well as a loss of access to certain protections, agencies and market sectors that are within the UK's economic interests.
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