tag:blogger.com,1999:blog-5574479.post341284295169038900..comments2024-03-29T12:23:31.959+00:00Comments on The IPKat: Deterrent damages and dodgy infringement: judicial legislation in the EUVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-5574479.post-64566406223163712382012-01-13T12:34:24.870+00:002012-01-13T12:34:24.870+00:00@Jeremy
While it is true that the case I cited ha...@Jeremy<br /><br />While it is true that the case I cited had a criminal law background, I am not sure why that changes the analysis. If anything, in criminal law one should be more reluctant to allow for sanction without legislation (at least in Germany that is a general principle of criminal and Constitutional law.)<br /><br />While I think that in situations where the choice of sanctions is left to the Member States the "effective, proportionate and dissuasive" standard is often found in various Directives (try googling that formula), and that that formula was developed in the case I cited, I do agree with your point.<br /><br />The side that needs to be dissuaded from abusing trademark law to build impediments to the internal market by blocking parallel imports are the plaintiffs. Or in other words, the EU law rule violated here has not much merit in the first place and therefore is not deserving of the usual "effective, proportionate and dissuasive" sanction standard.Karl-Friedrich Lenzhttp://k.lenz.name/LBnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42850824431544783592012-01-13T00:56:07.078+00:002012-01-13T00:56:07.078+00:00Certainly the EU never uses "deterrent" ...Certainly the EU never uses "deterrent" in its legislation and the Court is a bit vague on the issue (but see von Colson and Kamann Case 83/14). My argument would be that we have to interpret this time-honoured phrase in the light of the EU's obligations under Article 41 of TRIPs to provide remedies "which constitute a deterrent". I note that the French version of this is "qui constituent un moyen de dissuasion".Thomas Dillonnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-87814293860180388562012-01-12T22:28:31.051+00:002012-01-12T22:28:31.051+00:00@Thomas -- Thanks for your comment. I have receive...@Thomas -- Thanks for your comment. I have received some emails too about the use of the word "dissuasive", from readers who see it as a synonym of "deterrent". <br /><br />I don't see the two words as having the same meaning at all. For example, a per diem fine or damages award for non-compliance with an award is dissuasive, but not deterrent.Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-75288110529210837562012-01-12T20:42:11.185+00:002012-01-12T20:42:11.185+00:00Article 3(2) of the Enforcement Directive requires...Article 3(2) of the Enforcement Directive requires all the remedies to be "dissuasive", which is indeed the usual suave EU term for deterrent. This sounds a really wrong-headed decision. You should not have to consider damage when the claim is for profits and the Enforcement Directive does not require a Member State to reduce its remedies in favour of infringers (see Art. 2(1)). If the plaintiff has suffered greater damage than that represented by the profits, he can claim it. Then, and only then, should the judge consider proportionality. It can never be disproportionate to recover the net profits that the infringer actually made. Admittedly the then-Government implemented Article 13 in the silliest way.Thomas Dillonnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-29817859028972904142012-01-12T15:21:20.550+00:002012-01-12T15:21:20.550+00:00I'm doubtful that there is any social utility ...I'm doubtful that there is any social utility in dissuading the commission of a tort from which the tortfeasor profits even after full compensation for the wrong.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-68438567513991760702012-01-12T14:49:01.660+00:002012-01-12T14:49:01.660+00:00In Sweden : Damages provisions of all intellectua...In Sweden : Damages provisions of all intellectual property laws has been clarified 2009 with respect to the matters to be considered in determining damages when infringement has been completed intentionally or negligently. All the laws provide explicitly that the judge must take into account in particular:<br />First, right holder's loss of profit,<br />Second, profit that the person who committed the violation has got,<br />Third, damage to the rightholder's reputation<br />Forth, non-pecuniary damage and<br />Fifth, right holder's interests in the infringement of intellectual property rights are not being committed.<br /><br />Mats BjörkenfeldtAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-55002301902805376712012-01-12T14:12:06.757+00:002012-01-12T14:12:06.757+00:00@Karl-Friedrich - You are quite correct to draw at...@Karl-Friedrich - You are quite correct to draw attention to Case 68/88 -- but that wasn't a civil dispute between traders of the sort that the Enforcement Directive and the TM Directive contemplate; it was an action brought by the European Commission against Greece for failing to deal with its own complicity in a fraudulent scheme for passing Yugoslavian maize off as Greek maize. The case contemplates criminal and regulatory sanctions, not regular civil damages.Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-20303639464804178722012-01-12T12:53:07.937+00:002012-01-12T12:53:07.937+00:00That bit about "deterrent effect" is sta...That bit about "deterrent effect" is standard when talking about sanctions for infringement of EU law, coming from the Commission vs Hellenic Republic Court of Justice Case of 1989 (Case 68/88), Paragraph 24 of which reads:<br /><br />"For that purpose, whilst the choice of penalties remains within their discretion,they must ensure in particular that infringements of Community law are penalized<br />under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and<br />which, in any event, make the penalty effective, proportionate and dissuasive."<br /><br />This is the standard that applies for all cases where EU law does not specify the sanctions and leaves that to Member States.Karl-Friedrich Lenzhttp://k.lenz.name/LBnoreply@blogger.com