AN ONION -- BUT NO CABBAGES?

The Onion strikes again

Some quite gentle fun and games with trade marks appears in the most recent issue of The Onion. The IPKat can't imagine that the owners of the FRITO-LAY, CHEX and SPAM brands, among others, will lose much sleep over it.


Opinions on Proposals for European IP reform

Talking of sleep, the IPKat must have been having a cat-nap when the European Commission's Official Journal C286 was posted in the middle of November (actually, since he checks the relevant Eur-Lex site pretty often, he suspects that it might have been posted late and back-dated).

The theory (left); the practice (right)?

Issue C286 contains Opinions drawn the European Economic and Social Committee's 418th plenary session, held on 8 and 9 June 2005. Two of these are relevant to IP:

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with public health problems (COM(2004) 737 final – 2004/0258 (COD)): the gist of this Opinion is as follows:

1 The EESC appreciates the Commission's active role, with international bodies and other stakeholders, in seeking appropriate solutions to the serious health problems affecting developing countries with no pharmaceuticals production capacity and inadequate health structures.

2 The EESC supports both the procedure governing the compulsory licensing of pharmaceutical products covered by a patent or a supplementary protection certificate and the chosen control arrangements.

3 The EESC recommends strengthening the operational provisions in order to ensure:
— full compliance with current legislation, particularly in relation to production quality control,
— that the conditions for compulsory licensing are reinforced, particularly in relation to the arrangements used to differentiate between a licensed pharmaceutical product and its original, in order that illegal re-export within the EU or to third countries is avoided,
— a coordinated effort with the authorities of the importing countries in order to avoid fraud, counterfeiting and uses other than those originally provided for,
— that the implementation of Member States' customs rules and sanction arrangements are closely monitored to deter illicit operations,
— wider disclosure of compulsory licensing to better safeguard intellectual property rights.

4 It hopes that the scope is extended to include veterinary medicinal products in view of possible health emergencies arising from outbreaks of contagious animal diseases or contamination of food products of animal origin.

5 The EESC hopes that the European Commission continues its worldwide efforts to ensure that emergency medicines and adequate health structures are also made available to non-WTO developing countries.

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs (COM(2004) 582 final — 2004/0203 (COD)): the bottom line is as follows:

1. The EESC remains in favour of recognising the growing importance of intellectual property rights in commercial transactions, including legal protection of industrial designs as a fundamental element in technical innovation and the ensuing need to combat counterfeiting.

2. It reaffirms its understanding that the monopoly conferred on the owner of the design applies only to the external form of the product, not the product itself.

3. It thus confirms its view that to subject the spare parts covered by the repair clause to the design protection regime would be to establish a product monopoly on the secondary market, contrary to the fundamental nature of legal protection of
designs.

4. The regime introduced under Directive 98/71/EC has permitted differing and even opposing national regimes to survive and, with recent EU enlargement, to multiply in a crucial area of a sector of enormous economic weight in the European market.

5. The Commission's proposal seeks to achieve an internal market in this field by aligning national systems, based on liberalisation of use of protected designs for the purpose of repair of a complex product so as to restore its original appearance (secondary market).

6. The EESC supports the Commission's proposal which, it believes, may contribute to greater competition, lower prices and the creation of new jobs, particularly in SMEs.

7. The EESC considers that the proposal would benefit (i) from being better grounded in terms of a clear demonstration of its compatibility with the TRIPs Agreement, (ii) from more illustration of its effects on employment and, in particular, (iii) from a guarantee that consumers — quite apart from the right to information which seems to have been secured — will not be affected in their choices, either directly in terms of the safety and reliability of products used by independent suppliers, or indirectly by the consequences of the use of such parts in the repair of complex products for which they are intended (basically, motor vehicles) on either their residual market or their indirect costs (e.g. insurance).

The IPKat apologises for having missed these Opinions. His tendency is to get really involved in law once it has actually been passed, at the cost of taking his eye of the process that results in the law becoming law. Merpel wonders, is anyone doing (or has anyone done) any research on the place of EESC Opinions in the European Union IP legislation and policy development process? If so, does anyone have any good suggested reading on the topic?