More on the amicus -- from the horse's mouth

Great potential -- but do they
have a role in Europe?

Yesterday morning the IPKat posted this item on amicus curiae briefs in trade mark litigation. This morning he is delighted to offer you some inside information about one such amicus brief -- in the notorious Joined Cases C-466/09 Philips/Nokia. This information comes from Matthew Harris (Waterfront solicitors LLP), who declares his involvement, describes his personal experiences and offers an evaluation of some of the issues raised in yesterday's blogpost and beyond. He writes:

As the lawyer who was on the record for INTA in Nokia and as the chairperson of INTA’s European amicus subcommittee at the time, I can clarify the position in relation to Nokia. I can perhaps also add a little to the debate about the issue of intervention, particularly so far as intervention before the Court of Justice of the European Union (CJEU) is concerned.

You are correct that INTA was treated as a party in Nokia. The Court of Appeal for England and Wales granted INTA intervention status prior to the reference to the CJEU being made. As such, INTA was then able to file a written submission to the CJEU as a full party in the proceedings and also to participate at the subsequent oral hearing of the case in Luxembourg.

I note that Sir Konrad Schiemann stated that there was no provision in the Rules of the CJEU for amicus briefs. Article 93 of the current Rules of Procedure of the Court does however provide for intervention, although this provision seems to have been aimed at direct actions before the Court, rather than references from national courts seeking a preliminary ruling. So without some “flexible” interpretation on the part of the Court of its own rules, intervention directly in the CJEU (as opposed to via the national court making the reference) in preliminary ruling cases seems impossible. The structure of the new Rules of Procedure for the court that come into force at the end of this month, if anything, confirm this.

In my view this is all very unfortunate. Intervention is possible in the national courts of some member states but not in others. In practice, that means that the ability of bodies such as INTA or MARQUES to get a chance to intervene in a case on its way to the CJEU, which has potential consequences for the whole European Union, will depend on the mere happenstance of the location where those proceedings began [the IPKat thinks this is a significant point. While procedural harmonisation has not concerned the EU as much as substantive harmonisation, the fact that the development of EU jurisprudence is itself capable of being affected should be borne in mind].

Is 'brief' a misnomer? But
it takes no longer to ignore
a lengthy brief than
a short one

The only alternative, where intervention is not possible, is to try and persuade one of the parties to the proceedings to include that body’s submissions as part of that party’s own written submissions to the Court. This is what INTA had done in the case of previous amicus submissions to the CJEU [which explains any absence of reference to them by the Advocate General when advising the CJEU, and in the ruling itself]. However, this is inherently problematic. The intervention of a body such as INTA is often most useful precisely in those cases where it may have a view that is not entirely aligned with that of either of the main parties to the proceedings [eg where both parties are brand owners with legitimate grievances]. For that body then to be dependent on the goodwill of one of those parties for that view even to be represented in the papers before the court, is far from ideal.

I am also not persuaded by the suggestion that intervention would lead to any significant lengthening of proceedings. Anyone who has been involved in proceedings before the CJEU will be aware that one of the main causes of delay in those proceedings is the need for all the relevant papers to be translated into multiple languages so that all member states can then exercise their independent right to participate in those proceedings if they wish. That in turn can lead to multiple written submissions from different states that frankly can be of variable quality. The Commission itself will also usually participate.

Against that background, the suggestion that one additional entity participating in those proceedings will make any substantial difference to the time it takes for a case to be decided strikes me as somewhat unreal. It is in my view certainly not a good enough reason for preventing the voice being heard of an entity such as trade association or an international body such as INTA or MARQUES, when that entity may be able to put forward a different and broader perspective on the issues before the Court than many of the numerous other entities already participating in the proceedings.

The IPKat thanks Matthew, but wonders what his readers in the United States make of all this: how have their experiences of amicus briefs in trade mark litigation shaped their view of their efficicacy, their desirability and their impact on the trade mark dispute resolution process? Do let him know!