Yesterday the IPKat attended the joint IPI/BLACA Seminar on Oakley v Animal, hosted by Bird & Bird. Speaking were Guy Tritton of Hogarth Chambers, Martin Chamberlain of Brick Court Chambers and Neville March-Hunnings, former editor of the Common Market Law Reports.
The case, which is heading to the Court of Appeal, concerns the validity of the implementation of the Design Directive into UK law. The case has wider implications than IP because it concerns the power of the Secretary of State under the European Communities Act to implement provisions of EU law that do not amount to an obligation and which involve a degree of policy choice via secondary legislation (as opposed to putting the measure before Parliament).
This is basically a UK constitutional law matter. The hottest topic from the IPKat’s point of view though was one which involves EU law, and has been referred to the ECJ. The question asked of the ECJ by the Deputy Judge is whether it is a breach of EU for a Member State to chose to rely on a derogation if it is implementing a piece of EU legislation after the due implementation date The IPKat wants to know, how can you tell a derogation from the exercise of a positive option conferred by legislation and should the following 3 types of provision be treated differently: (i) an optional derogation; (ii) the opportunity to exercise a positive option e.g. Art.5(2) of the Trade Marks Act, which allows Member States to choose to give extra protection to marks with a reputation and (iii) obligations?