European Commission's Actions to Better Protect and Enforce Intellectual Property Rights

by White & Case LLP

Although the number of registrations of European Patents, Community Trademarks and Community Designs more than doubled between 2003 and 2012, the high numbers of infringements of intellectual property rights (IPRs) harm this positive trend.

To better protect and enforce IPRs, the European Commission adopted on 1st July 2014 two communications on (i) an Action Plan to address infringements of IPRs in the EU and (ii) a Strategy for the protection and enforcement of IPRs in third countries.

EU Action Plan on enforcement of IPRs[1]
The EU Action Plan focuses on the fight against commercial scale IPRs' infringements that harm the EU economy (discouragement of investment in innovation, loss of job creation, absence of tax revenues coming from goods or services, risk to health coming from counterfeit goods, etc.).

Among the new enforcement policy tools, the "follow the money" approach aims to deprive commercial scale infringers of their revenue flows rather than penalizing the individual for infringing, potentially unknowingly, IPRs.

In particular, the EU Action Plan sets out ten specific non-legislative actions as follows:

  1. Launch and monitor a new generation of targeted communication campaigns to raise awareness amongst citizens notably on the economic harm caused by commercial scale IPRs' infringements;
  2. Launch a series of consultation actions on applying due diligence in supply chains and further develop an EU due-diligence scheme to prevent commercial scale IP infringements;
  3. Develop voluntary Memoranda of Understanding to reduce the profits of commercial scale IP infringements in the online environment, involving advertising service providers, payment services and shippers;
  4. Analyze and report existing national initiatives seeking to improve IP civil enforcement procedures for SMEs, in particular in respect of small claims procedures;
  5. Review national financed schemes assisting SMEs to enforce their IPRs through a Green Paper and consult stakeholders on the need for future EU action on this basis;
  6. Issue a Green Paper to consult stakeholders on the impact of chargeback schemes to tackle commercial scale IP infringements and explore the scope for taking concrete action in this field;
  7. Establish a Member State Expert Group on IP Enforcement to share best practice on the work within the EU and be informed on the delivery of the Action Plan;
  8. Develop a comprehensive set of sectoral IP enforcement related training programmes for Member State authorities in the context of the single market;
  9. Develop, promote and publish a guide on best practice for public authorities to avoid purchasing counterfeit products;
  10. Publish a biennial report on the economic impact of the EU's IP policy to be used as an effective monitoring tool for the EU's new IP enforcement policy.

EU Strategy on Protection and Enforcement of IPRs in Third Countries
In addition to the EU Action Plan, the EU Strategy sets out the lines of action to enhance IPR standards and stem illicit trade in IPR infringing goods in third countries. Such EU Strategy is a revised version of the Commission's IPR enforcement Strategy in Third Countries conceived in 2004, to be updated given notably the technological change and increasing levels of IPR infringements.

The EU Strategy intends notably conducting surveys to identify a list of priority countries where the protection and enforcement of IPRs are detrimental to EU interests to evaluate how IPRs are being enforced, as well as providing and promoting awareness of technical assistance programmes relating to IPRs to third countries (training, capacity building, IP assets leverage, etc.).

The EU Action Plan and EU Strategy set out in the European Commission's Communications will be launched and carried out in 2014 and 2015. The Commission will consider at a later stage whether further, potentially legislative, measures are necessary on the basis of the outcomes of these actions.

This initiative intends notably to reduce the incentives for the commercial scale IP-infringers that undermine the EU economy. Such actions are complementary and consistent notably with the EU Customs Action plan that focuses on border enforcement and cooperation between customs authorities in the EU and in third countries.

[1] - The EU Action Plan is distinct from the ongoing copyright review, which is a broad analysis of the existing legislative framework for copyright in the EU's digital single market.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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