Soc it to ‘em! Judge Vajda on IP, competition and life at the CJEU

Christopher Vajda indicating the
number of cases he had
to decide last year?
Possibly not ...

Last Thursday IPSoc, the society for junior IP professionals, had the pleasure of hosting Christopher Vajda, the UK judge at the Court of Justice of the European Union (CJEU), who flew in from Luxembourg to host their second educational of the year, “The Interplay between IP and Competition Law: the View from the CJEU”, held at the London offices of Allen & Overy.  

How did it go? The society’s Education Secretary, Nick Buckland (Irwin Mitchell), tells all.

Here's what Nick writes:

"Addressing the ‘young-looking’ audience (flattery will get you everywhere), Judge Vajda first explained the “innate tension” that has existed since the Treaty of Rome between guaranteeing the free movement of goods (current Arts. 30-34 TFEU) whilst ensuring that “industrial and commercial property” is sufficiently protected (now Art. 36 TFEU). 

Felix is a fan of competition,
but doesn't really like it
when it comes to ice cream 

Over 1960-70s internal market considerations dominated, and the decisions in Grundig, Deutsche Grammophon and Centrafarm firmly established the doctrine of exhaustion of rights.  The decision in Van Zuylen v Hag , in which the then European Court of Justice (ECJ) ruled that the exercise of a trade mark right (as opposed to its mere existence as protected under the Treaty) where the mark had a common origin could unfairly partition the market, remains one of the most controversial decision in the Court’s history, and unfairly tipped the balance in favour of the internal market at the expense of the purpose of a trade mark until it was overturned in Hag II. The latter was a decision which, Judge Vajda explained, was in no small part due to UK Advocate General Francis Jacobs’s Opinion in that case. It was an example of “English judges not being afraid to say a decision is just plain wrong”.

Judge Vajda then gave his assessment on the various attempts at creating EU-wide IP rights, including his view that the CTM has been a success due to its simplicity. By contrast, the various attempts at patent harmonisation have not had the same success due to disagreements as to the scope and method of harmonisation.  When asked if he thought copyright harmonisation could (and should) be achieved, his view was that it was a matter for the legislature to decide upon. Conceptually this could happen, but he did not know how difficult it would be to achieve this in practice [this is all very ... well ... diplomatic, observes Merpel].

Charlie is very much
in favour of free markets,
but only when he has the dice

Discussion over drinks and canapés turned to the realities of day-to-day life as a CJEU judge.  The hardest thing about the transition from the bar to the European judiciary (“agreeing one judgment can be difficult, as can working solely in French”), the workload (“137 cases in the last year has kept me pretty busy”) and any advice to younger members of the profession (“when you are involved in references from UK courts, remember that with references the factual background needs to be explained but avoid asking over-elaborate questions of law which are in any event reformulated by the CJEU”).  A lively chat also ensued regarding what happens after-hours at the CJEU and which countries’ judges really get on, but we willl save those tales for another day…

The next IPSoc educational event will be an update on design rights, scheduled to take place on Tuesday 7 July.  The society is 400 members strong and is still taking applications for this year.  For more details and eligibility criteria check out www.ipsoc.com."