tag:blogger.com,1999:blog-5574479.post7214997790677813409..comments2024-03-18T17:10:35.838+00:00Comments on The IPKat: The Enforcement Directive permits punitive damages - or does it?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5574479.post-45349211328162169342017-02-28T14:09:20.645+00:002017-02-28T14:09:20.645+00:00Very interesting thoughts, thank you. Considering,...Very interesting thoughts, thank you. Considering, on the one hand, damages based on a double hypothetical license fee based on the Polish provision not to be contrary to the Enforcement Directive ("ED") while on the other hand referring to a concept of "abuse of rights" (based on art. 3 (2) if the ED) in "exceptional circumstances" is not entirely unproblematic. Especially as the ED is a minimum directive. Where should the line be drawn, i.e. when is actual loss "clearly and substantially" exceeded? As rightly pointed out in the post, you would indeed have to know the actual loss to determine this, wouldn't you? Getting into this discussion kind of takes the jist of the the whole provision, which allows the IP holder to rely on a hypothetical license fee instead of actual damages. Also, it appears quite convenient for the Court to be able to drop the question of a triple hypothetical license fee (due to the judgment from the Polish Constitutional Court). As a result, quite a few questions are left open...<br /><br />Finally, whether or not one should talk about "punitive damages" or not in any particular instance would require a reliable definition as to what actually is meant by this term. If punitive damages would for example be defined as damages exceeding the actual damages/loss suffered, the Court would here have had to know exactly what the actual loss suffered was - did it?<br /><br />On 1 February, I also reported on the judgment here: http://trustinip.com/punitive-damages-slipping-into-ip-enforcement-in-europe/#more-492<br />Vilhelm Schröderhttp://trustinip.com/vilhelm-schroder/noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-4015973398223454672017-02-25T10:04:59.779+00:002017-02-25T10:04:59.779+00:00I just wanted to briefly point out that are plenty...I just wanted to briefly point out that are plenty of solid arguments that support a different understanding of the statements made by the ECJ (even if the view expressed by the IPKat is quite elaborate and interesting).<br /><br />The IPKat analysis of the statements by the ECJ starts directly after the paragraph in which the court explicitly states that punitive damages are not prohibited under the enforcement directive. The statement might be obiter dictum, when you consider that the question from the Polish court can be answered regardless of if the enforcement directive allows for punitive damages or not (the court held that the doubling of the hypothetical licensing fee was not punitive damages). Nevertheless, it is quite clear that the court confirms the view that the directive only sets the minimum standard and that it does not prohibit punitive damages. This also gives the national courts a lot of room to maneuver, which is most likely a good thing, even if some courts would be happier with exact formulas for calculation...<br /><br />It could also be argued that the court wants to establish the "upper" limit of the enforcement directive as abuse of rights INSTEAD of punitive damages. Abuse of rights should must likely be seen as its own legal concept, and can only be invoked under certain circumstances (it is different from merely making punitive additions to the damages). To me, it really seems like the ECJ really knew what they were doing when introducing the concept of abuse of rights into the discussion. One of the conditions for invoking abuse of rights is that the damages exceed the ACTUAL damage. That means that it can only be invoked in the super-rare cases where the actual damage can be proven in an ideal-typical fashion but the national court regardless of this choses a different method and substantially goes beyond the actual damage (and beyond the need for effeciency and deterrence, I suppose). But in most cases, the actual damage cannot be proven and other methods must be used – and that is all fine; going beyond the proven damage, when it is hard to prove, seems to be the pragmatic approach in most cases.David Johanssonhttp://www.jur.uu.senoreply@blogger.com