IPKat threatens European and judicial serenity

Convinced that "IP TRANSLATOR" was not descriptive of "education; providing of training; entertainment; sporting and cultural activities" in Class 41, the crazed mob advanced upon
the Court of Justice, intent on shattering the fabled serenity of Luxembourg
The IPKat has expressed his concern in recent times about the lack of transparency that appears to attend the making of references to the Court of Justice of the European Union for a preliminary ruling on a point of intellectual property law (see here and here). Equally, it is no secret that the Kat has taken an interest in the current reference for a preliminary ruling in Case C-307/10 Chartered Institute of Patent Attorneys (the "IP TRANSLATOR" case: click here for background and links to earlier posts). This case, incidentally, does not involve life-and-death matters, even for IP attorneys and their clients. No kingdoms will be lost on the basis of the outcome; the scribes and commentators of the future decades will not be saying "this is the case that changed the face of Europe as we know it". The questions referred are these:
"Is it:
  • necessary for the various goods or services covered by a trade mark application to be identified with any and if so what particular degree of clarity and precision? 
  • permissible to use the general words of the Class Headings of the International Classification of Goods and Services established under the Nice Agreement ... for the purpose of identifying the various goods or services covered by a trade mark application? 
  • necessary or permissible for such use of the general words of the Class Headings of the said International Classification of Goods and Services to be interpreted in accordance with Communication No. 4/03 of the President of the Office for Harmonisation in the Internal Market of 16 June 2003 (OJ OHIM 2003 p.1647)?".
If you really want the gory details, the case is all about whether the words IP TRANSLATOR are registrable as a UK trade mark for "education; providing of training; entertainment; sporting and cultural activities" in Class 41, given that none of those words is remotely connected with IP translation but that those same words are a class heading for services which include "translation".

Last month the IPKat made a formal application to the European Commission in order to request a copy of the Commission's submission to the Court in this case, this being 'Written Observations to Court of Justice of the European Union dated 11 October 2010 with reference "sj.a(2010)740874/FWB/hb" regarding Case C-307/10".  This application was made in accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents and the IPKat was entitled to receive a response within 15 working days. On the 15th such day the Kat received the following response:
"I would like to inform you that the European Commission's Legal Service is dealing with your requests as quickly as possible. However, because of a great number of documents requested recently from the Legal Service and also because of the current holiday period, we have to extend the period prescribed for our response by another of 15 working days. The new deadline expires on 12 September 2011" [How fortunate to be a public servant and be able to take one's holidays with impunity, notes this Kat. Many readers of this blog can only imagine what their clients might say if they were to write something like that to them].
Ever patient, the Kat waited till that date, on which he received a second epistle from the Commission which read:
"Article 4(2) second indent of [Regulation 1049/2001] states by way of exception that "[t]he institutions shall refuse access to a document where disclosure would undermine the protection of [...] court proceedings [...] unless there is an overriding public interest in disclosure". [This request is going to undermine the protection of court proceedings? And the Court of Justice talks about proportionality?]
1 regret to inform you that the Written Observations submitted to the Court of Justice by the European Commission in Case C-307/10 are covered by this exception and therefore cannot be made available to you. 
The purpose of this exception is to maintain the independence of the EU institutions in their dealings with the Court and to ensure the proper course of justice. In this regard, the Court of Justice has stated in its recent judgment in Joined Cases C-514/07P, C-528/07P and C-32/07P that "pleadings lodged before the Court of Justice in court proceedings are wholly specific since they are inherently more a part of the judicial activities of the Court [...]". It has also noted that "judicial activities are as such excluded from the scope of the right of access to documents" and that "the exclusion of judicial activities from the scope of the right of access to documents, without any distinction being drawn between the various procedural stages, is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of arguments by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity". [This Kat is struggling to imagine what sort of arguments are likely to shatter the serenity of the court if a document, submitted by one set of bureaucrats -- the Commission -- with regard to the activities of other bureaucrats -- trade mark examiners -- is disclosed]
Refreshed by their summer break, though slightly surprised at how much grass had grown during two consecutive periods of 15 working days, the Commission's crack Red Tape brigade prepared to take on the advancing rioters ... 
In addition, the Court has recognized that "[i]t is therefore appropriate to allow a general presumption that disclosure of the pleadings lodged by one of the institutions in court proceedings would undermine the protection of those proceedings, [...], while those proceedings remain pending".  [If there is a blanket presumption of this nature, and everyone is on holiday or likely to be so at the Commission, wouldn't it be possible to stick a little line of rubric on to the document application form telling applicants not to bother applying in such a case, or have a standard form response that can be sent automatically to every application that falls within this category of apparently explosive documents?]
Since Case C-307/10 is fully ongoing [as distinct from partially ongoing?], I consider that the submissions to the Court of Justice are clearly covered by the exception provided for in article 4(2) second indent of the above mentioned Regulation and, consequently, cannot be disclosed at this stage of the proceedings ["at this stage" is an interesting expression. The hearing comes up soon and the Kat thinks he might just try his luck again ...]. 
Pursuant to Article 4(2) of Regulation 1049/2001, the exception to the right of access must be waived if there is an overriding public interest in disclosing the requested document. In order for an overriding public interest in disclosure to exist, this interest, firstly, has to be public and, secondly, overriding, i.e. in this case it must outweigh the interest protected under Article 4(2), second indent. [It's going to be tough to prove that there is an overriding public interest when there's scarcely any public interest in the case at all, comments Merpel]
In the present case, I see no elements capable of showing the existence of an overriding public interest in disclosure of the refused documents that would outweigh the public
interest in the protection of the court proceedings ...".
The IPKat is not happy about this.  The result is that we can't find out what submissions either the Commission or the national offices are making to the Court in this case, even though they are all public servants who are answerable to the Kats and others for their actions.  Despite this mammoth public interest in no-one knowing what submissions have been made, it does not appear to him that there is any rule that requires a submission to be kept under wraps by whoever makes it -- so what happens to the Court's serenity  if a submitting party chooses to publicise its submission?

La Serenissima here and here
IPKat threatens European and judicial serenity IPKat threatens European and judicial serenity Reviewed by Jeremy on Tuesday, September 20, 2011 Rating: 5


  1. I daresay the size of the readership of this blog should attest to the public interest.

    The attitude shown makes me question if there is any basis for the extension to the due date. Were I to extend my due dates in the same high handed style I would quickly find myself in hot water with no sympathy from the deadline setting authorities.

  2. Cannot say that I blame the IPKat for tampin', as they say round here, bud.

  3. My comment that you should try the European Ombudsman seems to have got lost, so I'm posting it again. You could of course try an appeal to the General Court, but the Ombudsman might be less complicated and more sympathetic. I would be very interested to see what comes of such a complaint.

    Another possibility which occurs is to try CJEU itself. The rules of procedure are not, unlike our CPR, quite so clear on the rules about access to the court's own document.

    As far as I can see, they would be in the hands of the registrar (if I'm reading the rules aright) but the Instructions to the Registrar are silent on what (if anything) they should do if asked to produce a statement filed by one of the institutions.

    Again, I'd love to see what happens if you do ask. Keep us posted.

  4. Fighting the good fight is always hard work. It is always necessary to go it alone because of a lack of substantive support as opposed to "go for it Jeremy" style comments. This is why it is never possible to achieve change with such organisations, governments, groups societies etc. But good luck anyway, and keep us posted.

    Am I correct in thinking such information would be made readily available in the USA and maybe we can learn something from them?

  5. Could you try asking CIPA for a copy?

  6. @Anonymous 11:33am

    The problem isn't one of getting to see a copy -- it's a problem of getting the Commission to let me see it!

  7. "an atmosphere of total serenity"

    Sir Humphrey would be proud of that reply.

  8. This said, unlike the Kat, I can see how revealing the opinion of one set of bureaucrats about another set of bureaucrats could shatter the serenity of both sets.

  9. "The problem isn't one of getting to see a copy -- it's a problem of getting the Commission to let me see it!"

    I'm confused. Someone else (eg CIPA) will let you see a copy, but you're spurning that offer in order to request a copy off the Commission instead? And then moaning when they won't?

  10. Anonymous at 10:13PM -

    Whether or not any party in any CJEU reference discloses a copy of a document is not the point. Why should the public have to resort to having to find a willing party in a CJEU reference who would be kind enough to show them the submissions? The issue that is being fought for is that everyone should be able to see the submissions of how institutions of the EU and Member States interpret the law that they expect the public to be bound by and which theoretically factors in the decision making of the CJEU.

    Its a pretty basic principle of open justice and transparency, and I for one, do not understand why access to documents are being shielded for "serenity" reasons, unless there are legitimate public interest reasons.

    Can you imagine if the Courts here closed the statements of case for all cases because they wanted to be able to ensure that the proceedings were taking place in "an atmosphere of total serenity"? You've seen the fuss about that in respect of some media cases....

    I can see the Daily Mail headline now....

  11. Jeremy,

    You should look at the judgment in the cases cited (C-514/07 et al - http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007CJ0514:EN:HTML). Although the blocking response from the Commission conveniently doesn't mention it, paras 107-136 indicate that the position is quite different after judgment, in that many of the restrictions on transparency fall away.

    Also note that the Commission's submissions are summarised in the report for the hearing (made available at the hearing and also available from the Court's press office, albeit only in the language of the case - they are no longer translated and published in the ECR) and the Commission typically makes oral submissions at the hearing which is public. On that basis, there would also seem to be an argument (against the ECJ's findings in C-514/07, paras 92-94) that the Commission's submission should be made available at least in part after the oral hearing, to the extent that the basis for non-disclosure has been removed by the report for the hearing or the oral hearing itself. Given the substantial time delay of many months between hearing and judgment, that could be important, although the Commission will most likely still resist such disclosure by claiming that it is not required to disclose a scintilla more than was in the report for the hearing and the oral submissions, in order to maintain the total serenity of the court proceedings. But perhaps you might be able to get the pleading notes from the Commission, which are the basis for its oral submissions (and are provided to the translators).



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