Sunday, April 7, 2019

European Union Trade Law Essay Example for Free

European Union c ar Law EssayIntroductionCounterfeiting, plagiarism and onsets of keen lieu mightys argon in truth frequent in the European Union1. These take lay out all over the mankind and pose a grave danger to field of training economies and governments. The success of much(prenominal)(prenominal) activities is due to the moulders greed for bills and alike the sum up in demand due to consumer ignorance, which gifts them prefer these trim down woo imitation products2.The European internecine wad is characterized by internal disparities in the convey of enforcing quick situation rights and counterfeiting, buc tummyeering and infringements of clever quality rights takes advantage of this. These disparities de bournine the place where counterfeiting and plagiarisation activities inside the biotic community argon carried go forth. The implication of this is that counterfeited and pirated products argon manufactured and sold more(prenominal) in th ose countries which argon slight effective than others in argueing with counterfeiting and piracy. and then this has direct consequences on good deal betwixt the Member States3. It also has a direct effect on the circumstances keep in lineling competition in the Internal chaseet. The result of this is that it leads to diversion of avocation, distorts competition and creates disturbances in the flock.The transmutation amid the transcriptions of penalties, in different nations, creates difficulty in effectively tackling the fuss of counterfeiting and piracy4. It also results in the problem of im straightlaced functioning of the Internal Market. Further, it leads to issueing of confidence in frugal circles in the Internal Market, resulting in a reduction in enthronisation. Moreover, in addition to the stinting and social results, counterfeiting and piracy also close up consumer encourageion, particularly in respect of reality health and safety5.Increasing characte r of the Internet has enabled pirated products to be swagd truly quickly around the globe and last but not the least this phenomenon seems to be increasingly associated with coordinate crime. Fighting this trend is therefore genuinely(prenominal) important for the European residential bea in particular when these dirty activities are carried out for commercial purposes or if they result in considerable damage to the right carrier. The situation is exceptionally needle equal in respect of the music industry6.Counterfeiting and piracy gull resulted in continual and increasing vituperate macrocosmness done to business in the form of lower investments and closure of small and in shapeediate enterprises to regulateliness by way of job losses and decreasing consumer safety and threat to creativity and governments due to loss of tax revenue. In the possibility of the cultural (music, adopts, videos CDs, DVDs) and software industries the situation has been make worse by the light(a) access to a global firebrandet via the internet7. Quite some evidence has been obtained that reveals that counterfeiting and piracy are graceful increasingly linked to organised crime and terrorist activities be make of the high profits and the comparatively low finds of discovery and punishment8. think for deed at the EU level At present, as far as legislation in respect of the enforcement of adroit property rights is pertain, there are important differences in the Member States. These differences are macrocosm exploited by Pirates and counterfeiters by carrying out illicit activities in Member States where enforcement mechanisms are apply little effectively. It is hoped that the proposed directive ordain reduce counterfeiting and piracy, by reducing differences in national legislations across the EU and by directing Member States to implement tougher sanctions and better remedies against infringements9. Intellectual Property chastises or IPR, infring ement takes place in most types of rights and virtually every product that brook be pirated or counterfeited10.It is usually assumed that piracy and counterfeiting take place principal(prenominal)ly with regard to some luxury, sports and clothe marques, music and software CDs/DVDs. The reality is other than and virtually every IP is cosmos violated at a significant level and that the miscellanea of invent products is vast, with voluminous software producers as likely to be harmed as small producers11.Copyright piracy is widespread in all formats with particular focus on digital media, from CDs to VCDs, to DVDs. Further, il good digital statistical distribution of films, music, pictures, texts and software over the Internet is extensive12.Tradetag Counterfeiting takes place in respect of almost all the products and there fake clothes, footwear, leather betters, watches, toys, cigarettes, pharmaceutical products, car move, electronic devices, etcetera In some countries f ormer business partners go along to use trade pocks or designs of the right holders even after the partnership had ended13.Technical designs There collect been infringements in respect of design over a vast and diverse range of products like, spectacle frames, wine glasses, sliding doors, textiles, etc14.Patents more reports were submitted regarding infringements on pharmaceutical products, electrical internal appliances, industrial machinery, etc15.Geographical Indications In some countries the registration by topical anaesthetic producers of trademarks of geographical indications line of workating in familiarity Member States is permitted16.Data protection A get of instances where partial tone or total leave out of protection in respect of information given to national politics, spell lodging patents or during the registration of pharmaceutical products arrive at convey to light17.Certain countries like China, Korea, Russia, Turkey, Taiwan, etc, are doubtlessly l arge scale producers of pirated and counterfeit goods. A major part of their production is exported, however, if there is a large domestic market, part of the production is apply for domestic consumption. In developed countries, Uruguay, Brazil, etc, a large human activity of fake goods is imported. Another category of countries exist, which serve as points of pass through for fake goods distributed by international net influences18.The regular army is one much(prenominal) awkward and despite its world a country oecumenically recognized as having strict and effective enforcement rules and practices, nevertheless, according to official statistics is one of the main countries of origin of pirated or counterfeit goods seized. The cause for this is held to be the vast quantity of counterfeit goods produced in different countries being transported via the US to other destinations. Lastly, in respect of internet establish IPR violations, it is very difficult to determine the ori gin and destination of much(prenominal) traffic.The European Union is an important destination for such goods. In addition to the goods exported into the biotic community, a sizeable part of the damage ca employ to the EU right-holders is because of the loss of income and reputation, in the case of fake goods of lower quality, due to gross sales in whatever other market. EU countries are also countries of transit for counterfeit goods and pharmaceutical products. The problem is so acute that the EU and the USA have formed a joint strategy to counter it19.The efforts of the fragment enjoin governments are in general ineffective due to neediness of a synchronized and effective approach. If the right-holders have the will, the means and the influence to compel the competent authorities to take appropriate action then such eyeshades are successful. The meshing against counterfeiting and piracy is hindered not due to obstacles in the material equityfulness, but due to the un availability of means the lack of willingness of the enforcement agents to apply the honor strictly and efficiently20. These enforcement agencies are, frequently, unsuccessful due to manpower shortage, shortage of funds, lack of regulation of the base legislation and general problems caused by insufficient national and international co-ordination including a lack of transparency.To be more specific, this is encouraged by the absence of deterrent punishments for infringers. IPR violations21 are therefore low risk high profit activities and usually, there is unwillingness to apply criminal sanctions. Further, administrative penalties are in general insufficient to dissuade pirates and counterfeiters and sanctions involving the confiscation of production machinery or the closing of production facilities are not applied schemeatically.This encourages and perpetuates criminal activities. Trials in these cases are slow, uncoordinated and costly. There are long delays and very few lordl y results and jurisprudence does not show uniformity. Moreover, the effort is do all the more difficult due to local protection for infringing industries and rampant corruption of the authorities in charge. There is also an absence of trained officials, like legislators, judges, prosecutors, impost officials, police, etc. A major problem arises due to the man not being full aware of this problem. M each members of the universe do not consider piracy and counterfeiting to be wrong and at eras, there is lack of awareness of the fact that victimization such products is an infringement of the law.In some countries the co-operation of right-holders is sure in criminal investigations leading to encouraging results, like the seizure of goods and the destruction of criminal networks. For instance the opthalmic disc regulation is a cost-effective way to deal with the piracy problem, because optical disc laws work against infringements of sharp property rights.Further, these rules mak e the manufacture of pirated optical discs much more difficult for rogue elements without implementing unreasonable regulatory burdens on jural plants. This type of measure has yielded noticeable results in countries like Hong-Kong and the Ukraine.It has been observed that in several(prenominal) instances right-holders have not resorted to the law of the countries where the violations occur, because of a lack of confidence in the local system and also due to lack of ways to defend their rights in a distant country, unawareness of the means available and sometimes due fear of reprisals where criminal organizations are the violators.Several reports have indicated that national producers, criminate of infringements are shielded from effective prosecution. In some countries the authorities will unofficially cl repoint that domestic job providers deserve more protection than foreign right-holders. As long as the majority of the mankind sees IPR violations as a mechanism to obtain bas ically the selfsame(prenominal) goods at a much lower price, it will not be possible to diminish piracy and counterfeiting22.Although, strict action is interpreted in respect of counterfeit goods which affect consumer health and safety, the sale of imitation luxury brands, software, audio and video products are frequent in many countries and constitute a major attraction for tourists. There is limited earth awareness of the bad effects of widespread IPR violations, resulting in loss of foreign investment, discouragement to creativity and seek maturement, loss of international credibility of the countries and the nexus between counterfeiting and piracy with organised crime.23In chapter one, a reciprocation about the response of EU Trade Mark Law against counterfeiting and piracy has been taken up. The causes of piracy and counterfeiting are dealt with briefly. After this, proposed remedies for infringements are considered. Next, the effects of counterfeiting and piracy and the resultant loss to the right holders are described. The enforcement mechanisms for combating piracy and counterfeiting are then analyzed. Subsequently, the different departments and directorates of the EU and their functions and enforcement mechanism are described. Finally, the role of usance department in curtailing piracy and counterfeiting is discussed in brief.As such this chapter, which deals with enforcement mechanisms of the EU trade mark law, reveals that these are not effective rich to deal with this problem.In chapter two, the role of courts in combating piracy is discussed in detail with case laws. After this the working procedures of community trademark court and the complexity of their procedures are discussed. This is followed by a discussion of a number of landmark cases in the history of the struggle against counterfeiting and piracy. Lastly, the latest EU law in respect of these crimes has been discussed in detail. In this chapter, the role of the courts in coun tering piracy and counterfeiting, though commendable, the disparities in national laws reduce their effectiveness.In chapter three, the responses of fantan in combating the problem of counterfeiting and piracy in the EU have been discussed. In this regard the various acts of parliament that pertain to this problem in various fields have been discussed in detail. These include the various directives, regulations and acts. Moreover, the time after which the trademark will be revoked and the methods by which it will be invalidated have been discussed. Although, parliament has enacted several laws to control the problem of piracy and counterfeiting, the lack of stringency in their enforcement has not been able to control this problem to the level required.Chapter 1The Response of EU Trade Marks Law against Counterfeiting and piracyCauses of piracy and CounterfeitingCounterfeiting, piracy and infringements of intellectual property rights are constantly on the potpourri magnitude. T heir effect is international and they pose a serious threat to national economies. In the European Internal Market, these phenomena take particular advantage of the national disparities that may exist in the means of enforcing intellectual property rights. In other words, counterfeited and pirated products are more likely to be manufactured and sold in those countries that are less effective than others in combating counterfeiting and piracy.Counterfeiting is at a time a multi-million pound business, run by organised criminals. It is thievery, no more, no less. It moves resources from the honest, tax-paying economy to the dishonest, tax-evading economy. It puts the law-abiding employees of brand owning companies out of work. In the worst cases, such as unauthorised pharmaceutical products, aircraft parts or take vehicle parts, the counterfeit version is sometimes a serious danger to public safety.The principal cause of piracy and counterfeiting is that dishonest traders can make c onsiderable profits, by taking advantage of the creative efforts and investment of others and by selling imitations at a lower cost than those incurred by the producer of genuine products. Clearly, such trade exists due to consumer demand and perception that piracy and counterfeiting are mild violations. Intellectual property theft is not considered by the public to be as bad as fraud, theft or tres shine. This is made worse by the failure of the public authorities and commercial organizations in bringing to the notice of the consumers the dangers of use unauthorised products, the harmful social welfare effects from this trade and the imposition of insufficiently restrictive penalties by the judicial authorities.Proposed RemediesOn 15 October 1998, the European management presented a Green Paper on the fight against counterfeiting and piracy in the Single Market. The purpose of this paper was to start a hand on this reduce with the participation of all the interested parties. Th e result of this consultation exercise established that the functioning of the Internal Market was being adversely affected due to the differences in the national systems of intellectual property rights24. Subsequently, on the thirtieth of November, 2000 the way presented a follow-up Communication to the Green Paper in which it recommended an action plan to deal more effectively with counterfeiting and piracy.Some of the measures proposed were the presentation of a guiding that would bring about a harmonising of the national furnish on the means of enforcing intellectual property rights. The general opinion of the public is that counterfeiting is a nontoxic and as the price charged for genuine products are higher, there seems to be a general good will towards these counterfeiters. In accordance with section 111 of the Copyright, Designs and Patents Act 1988 of the linked Kingdom, the owner of a right of first publication can give written notice to the Customs and Excise Departme nt that infringed copies of published literary, dramatic or melodious works that are expected to arrive in the UK should be prohibited25.From the 1st of July 1999, command (EC) 241/1999 has amended a Council Regulation26 by extending prohibition to goods infringing patents and supplementary protection certificates and to goods under all forms of customs supervision.This regulation contains a figure out by which members of Community Trade Marks can make a single finishing for customs intervention in any number of Member States, accordingly, the European cathexis flyer that between July 1995 and June 1997 customs authorities had taken action in about 4000 cases in comparison to still 2000 in the front 7 years before the carrying out of this Regulation27.Many contraband markets evolve through one or more of the following stages Grey market, or parallel trading smuggling counterfeiting and piracy. The markets for contraband cigarettes, alcohol and pharmaceuticals pass through all three stages in their evolution, while the contraband markets for branded apparel and software big businessman progress directly from grey market trading to counterfeiting.Sometimes when no such grey market goods are available organised crime groups may start producing and distributing counterfeit and pirated goods. In this manner a supply chain that is completely in the hands of organised crime groups is formed. Digitization and access to used manufacturing equipment has allowed the counterfeiting and piracy of cigarettes, apparel, computer software and music CDs.Impact of Counterfeiting and PiracyThis Green Paper has assessed that 5% and 7% of world trade is due to counterfeited and pirated goods and the fact remains that this problem is more in certain vault of heavens than in others. The Commission on assessment of levels of counterfeiting and piracy with regard to turnovers of some of the sectors concluded that, it is considerable. It opined that the level of counterfeiti ng and piracy was 35% in the software industry, 25% in the audio industry and 12% in the toy industry.The music, film and software industry, which are the main copyright industries are severely affected by counterfeiting and piracy. This problem occurs in the branded goods sector or in the industries like clothing, footwear, fragrances and cosmetics, luxury goods, motor car parts, aircraft parts, pharmaceuticals, food and inebriety and industrial chemicals. In France and Italy counterfeiting is more in respect of luxury goods, whereas in Germany the problem is compounded by the manipulated certification of counterfeited goods28. The resulting effects of counterfeiting and piracy are,diminished sales,disadvantages to the legitimate enterprises, due to free utilization of their research and development by their competitors,liability due to defective imitation products,free availability of imitations harmed the prestige and goodwill of a brand,initiation of legal proceedings against i nfringers and continuous supervision of the markets is expensive29.Further, the losses caused to the industry will be reflected in the public revenue, thereby raising the unemployment level in that industry30. concord to the statistics of International Federation of Phonographic Industry, sales of illegal CDs accounted for 14% of the relevant market in the world. In may 2003, the UK music industry pointed out that the sales of pirated CDs exceeded the sales of genuine products. With regard to the responses to the representations green paper on combating the counterfeiting the piracy in the international market it was revealed that within the European Union the counterfeited and pirated goods amounted to 5 to 10 % of vehicle spare parts sales, 10% of sales of CDs, 16% of video and DVD film sales and 22% of shoes and clothing sales31.The delegacy referred to a survey conducted by KPMG in France, in 1998, in a proposal for counterfeiting directive. It was reported by Sofres and the Union des Fabricants that the average losses to the businesses, on which survey was conducted, amounted to 6.4% of the total turnover.According, to a study of 2000 by the centre for economic and business research in relation to global anti counterfeiting group, which reason the average annual reduction in profits, was 1,266 million in the clothing and footwear sector, 555 million in the perfumes and cosmetics sector, 27 million in the toys and sports articles sector and 292 million in the pharmaceutical sector32. The losses caused by counterfeiting and piracy with regard to tax and excise fields were considerable.The commissions proposal for a directive on the enforcement of intellectual property rights, accompanied by a paper of estimation revealing that in the phonographic sector VAT losses amounted to 100 million that were incurred by the EU Governments as a result of counterfeiting and piracy33.EnforcementThe leading 2004/48/EC of the European fan tan and of the Counci l of 29 April 2004 on the enforcement of intellectual property rights, states that till forthwith the main concentration of the EC in the field of intellectual property was on harmonisation of substantive law, and also on the formation of a one(a) right at the community level.National property rights such as trademarks, designs, patents for bio technological inventions, copyright aspects and its named rights have been harmonized. At the Community level, the Commission has taken steps to formulate unitary rights, which become valid instantly throughout the EC and examples of these are Community trademarks and designs. In respect of Community patents formation discussions are going on at the level of the Community ministers. In spite of the fact that the harmonization of substantive law on intellectual property rights has promoted the free movement of goods between member states, the methods of enforcing them has not yet been harmonized. Hence, the present directive is required.Coun terfeiting is in different forms. For example, in the absence of any permission from the English Football Club, football shirts are manufactured in the UK. This is being done by a company which is in no way connected with the Football Club. The brake pad manufacturers produced 150,000 brake pads to a required specification by the authorized dealer, though his order was for only 100,000 units. All of these brake pads marked with the companys logo were supplied to unauthorized distributors.The European Commission represents and upholds the interests of the European Union or EU. It is a politically independent institution, which is the motivating power within the EUs institutional system. Its main roles are proposing legislation to the parliament and the Council managing and implementing EU policies and the budget enforcing European law together with the European cost of Justice and representing the European Union internationally.In 1994, the EU implemented the Customs Regulation34, which controls the imports of fake goods. In 1998, the Commission issued the Green Paper on Combating Counterfeiting and Piracy in the Single Market35. Based on the responses to this Green Paper, the Commission formulated an Action Plan, on 30 November 2000. The Action Plan consists of harmonization of legislation among all EU members in order to protect intellectual property rights better law enforcement training programs education programs to increase knowledge of the harm caused by buying imitation and pirated products and the beginning of a study for defining a method of collecting, analysing and comparing data on counterfeiting and piracy.In April 2004, this Action Plan was translated into a directive36 for balancing the performance of intellectual property rights in the Community by a Regulation37 that improved customs action against counterfeit and pirated goods. It also extended Europols powers to include piracy and counterfeiting. In November 2004, the European Commissio n implemented a Strategy for the Enforcement of Intellectual Property Rights in Third Countries38 outside the Community.Departments of the European CommissionThe organization of the European Commission is into departments, known as directorates-General or DGs and services, such as legal services. Each DG accountable for a specific area of form _or_ system of government is controlled by a Director-General who is accountable to one of the commissioners. These DGs work out and plan the Commissions legislative proposals and technical co-operation activities. Some of the Directorates General of the European Commission deal with the enforcement of intellectual property rights. Some examples of these are DG Trade, DG Taxation and Customs Union and DG Internal Market. These are discussed in the sequel.Directorate General for TradeThe DG Trade has to develop and observe intellectual property policies in agreement with the trade policies of the EU. One of the main objectives of the EU is to implement better recognition and enforcement of intellectual property rights. Its policy with respect to intellectual property consists of implementing IP protection all over the world promoting sufficient enforcement of IPRs universally and taking part in the war against violations making certain that IPRs support public health objectives, cooperating with developing and under developed countries where implementation of intellectual property laws is difficult.The Enforcement Strategy focuses on the implementation of existing IPR laws and intends to illustrate, prioritise and organize the instruments available to the European Commission for achieving its goal. It identifies priority countries and the implementation of specific measures in technical assistance, dispute settlement and other sanction mechanisms, collaborating with like minded private entities, international organizations and countries, etc. It provides information for dealing with piracy, counterfeiting and other IPR violations.The objectives of the Enforcement Strategy areIdentification of priority countries. The focus of the EU action will be on the most problematic countries with regard to IPR violations. Such countries will be place by a regular survey of all stakeholders.Political dialogue, incentives and technical co-operation. The EU will make all efforts to ensure that technical assistance given to third countries focuses on IPR enforcement.IPR mechanisms in multilateral, bi-regional and bilateral agreements. The EU will address enforcement concerns more systematically, within the mannequin of these agreements and consult trading partners in order to change IPR enforcement clauses in bilateral agreements.Dispute settlement sanctions. The EU will recall the possibility that right-holders have to give the EUs Trade Barriers Regulation39 or of bilateral agreements, where there is a violation of TRIPs.Increasing awareness. The public is made increasingly aware of the disadvantages and h arm caused by counterfeiting by means of the EU.Creation of public-private partnerships. The EU supports and participates in local IP networks using mechanisms installed by Commission services like the IPR Help Desk and Innovation communicate Centers to exchange information with right-holders and associations. Moreover, it improves co-operation with companies and associations that actively fight piracy and counterfeiting.Directorate General, Taxation and Customs UnionAn of the essence(p) component for the creation of an integrated single European market and a common commercial policy is the Customs Union. Its purpose is to maintain and defend the Customs Union and ensure uniform application of the assortment and origin rules.The Directorate General participates in international commercial negotiations which concern the application of the rules of origin and the invidious trading systems. Custom administrators have to not only collect duties but also have to protect consumers and legitimate traders.On the 22nd of July 2003, the Council of Ministers implemented a new regulation in respect of customs and counterfeiting. This Regulation which replaces the previous one40 includes additional intellectual property rights like plant variety rights, geographical indications.Moreover, time period of validity and request forms have been standardised. It has done away with fees and guarantees in order to help small and medium sized companies or SMEs to make free of cost use of the system. It extends the scope of the ex officio procedure, which permits customs authorities to react even if there is no previous application for action. The extension of the use of this possibility is of especial benefit to SMEs. Further, there is an increase in the quality and quantity of information given by customs to intellectual property right holders.This permits samples to be given to the owners of the intellectual property rights. It permits checking travellers to ensure that the u se of couriers does not hide a large flow of goods.Directorate General, Internal Market The internal market is an essential part of the European Union. It has emerged as a result of the Treaty of Rome. This treaty created a common market in which there was a free movement of goods, persons, services and capital.Unification of the markets of Member States results in economic and political integration. The Treaty establishing the European Community or the EC Treaty brings about a system that ensures undistorted competition in the internal market and approximation of the laws of Member States for the functioning of the common market. This DG mainly concentrates on the knowledge based features of the Single Market and to some extent on the traditional regulatory instruments, which in order to avoid trade barriers harmonize the laws of the Member States. Its goal is to create unitary systems for defend rights with Community-wide effect. It also focuses on ensuring the proper functioning of the Single Market in the fight against Counterfeiting.In addition, this DG also takes take of debates on the principle of Community enervation of trade mark rights and its economic effects on innovation, employment, prices and discussions on Enlargement. In order to get rid of trade barriers and to enable the cloth responsive to new forms of exploitation, a considerable amount of intellectual property harmonization has taken place in the EU. The Internal Market DG has to modernise and adapt this acquis to advances in technology or the markets concerned for example, directive on copyright and related rights in the Information Society. Further, it has to improve international negotiations in order to strengthen the IPR internationally.A major contribution in this field by the Internal Market DG has been the Directive, pick out in April 2004, on the enforcement of intellectual and industrial property rights.41It makes it mandatory for all 25 EU Member States to apply successful, inhibitive and impartial remedies and penalties against those engaged in counterfeiting and piracy and thereby bring about a level playing field for right holders in the EU. This new Directive brings about uniformity, to the extent possible, in national legislation throughout the EU.This uniformity is respect of civic sanctions and remedies and it is in accordance with best practices in one or several member states. It consists of procedures in respect of evidence and its protection, and interim actions like injunctions and seizure. Right holders have several remedies like destruction, recall or permanent removal of illegal goods, financial reparation, injunctions and damages. It also implements a right to information, which permits judges to compel certain persons to disclose particulars of people involved in counterfeiting and piracy. on a lower floor this Directive, member states have to appoint national correspondents to cooperate and exchange information with each other and th e Commission. In addition to benefits to right holders, the Directive contains suitable safeguards against abuse, guarantees the rights of the defence and contains references to protect personal data and confidential information.Directorate General, EnterpriseDG Enterprise has founded the IPR-Helpdesk42 whose main aim is to help prospective and current contractors who are move in European Community funded research and technological development projects concerned with IPR issues.This helpdesk gives advice on Community diffusion and protection rules and issues relating to IPR in international research projects. Another international purpose of the action is to increase knowledge of the European research community on IPR issues, with particular reference to their European dimension. It also conducts several training courses and information seminars on intellectual property consequences.Directorate General Justice, Freedom and Security The DG Justice, Freedom and Security have common regulatory responsibilities as IPR enforcement is connected with law enforcement both within and outside the Community. This DG is at present working on a legislative project on approximation of national legislation and sanctions on counterfeiting and piracy. Specific field operations are taken care of by the European Anti-Fraud Office (OLAF).Customs Regulation Moreover, the European Union has introduced a Customs Regulation that empowers Customs officials to seize suspected counterfeit or pirated goods. Under this Regulation, EU Customs Authorities can detain suspected goods, for a short period, before the end of which, the rights owner have to initiate legal action against the alleged counterfeiter or pirate. Proper implementation would make this Regulation a very powerful weapon for rights holder with a good, anti-counterfeiting, intelligence network.This move to enact the Directive on enforcement of intellectual property is subsequent to the UKs recent effort to tackle the probl em of piracy by en playing the Copyright, and so forth and Trade Marks (Offences and Enforcement) Act 2002.The implication of this law is that those who deal in pirated goods and specifically, those who produce such goods and those who distribute them, will get stiffer fines and if the crime is serious enough they may be imprisoned. The requirement of this Directive will be that each of the Member States will have to apply the same procedure in infringement proceedings and this would include damages awarded, injunctions, provisional measures and sentencing43.Intelligence, appropriate criminal sanctions and butterflys that enforce these sanctions, are essential factors in combating counterfeiting. In the absence of precise information on the source, time of supply and place of transfer it is very difficult to stop their entry onto the market. In order to limit piracy within the EU the EC has revealed plans to put into practice an anti-piracy law that aims at harmonizing anti-piracy law throughout the Member states.This chapter has dealt with the enforcement of trade mark laws, in order to prevent piracy and counterfeiting. Evidently, this problem cannot be curbed because of the disparities in the domestic laws of the member states. As such the pirated and counterfeited goods, though not produced in the EU, freely flow into it with great damage being done to the right holders. In the next chapter the role of the courts in dealing with this problem will be discussed.Chapter 2Responses of the Courts to Counterfeiting and PiracyIn the absence of effective methods for enforcing intellectual property rights, innovation and creativity will be deter and investment will be reduced. It is therefore necessary to ensure that the substantive law on intellectual property, which is a part of the acquis communautaire, is applied effectively in the Community. The acquis communautaire includes all the treaties, regulations and directives passed by the European institutions as swell up as judgments laid down by the Court of Justice, which member countries have to adopt, implement and enforce in order to be admitted to the EU44.The means of enforcing intellectual property rights are of vital greatness for the success of the Internal Market. The discrepancies between the systems of the Member States in respect of the means of enforcing intellectual property rights are harmful to the proper functioning of the Internal Market. These discrepancies also make it impossible to ensure that intellectual property rights have the same level of protection throughout the Community45. This situation hinders free movement and does not create an environment that is favourable to healthy competition.Formerly, the commissions ability for providing criminal sanctions under the first pillar was suspect. Hence, the EU commission submitted a draft directive, which entails the harmonization of law to facilitate the single market. The directive which is the foundation instrume nt would have been adopted by the council and the parliament under the co stopping point method. Moreover, the commission has submitted a draft framework decision, which contains criminal sanctions. A framework decision is a third pillar instrument that is adopted by the council exclusively. Hence, the parliament has not taken any part in this butt on.The commission was disinterested in split up the draft legislation into two legal instruments, a directive and a framework decision hence, it initiated proceedings against this mechanism before ECJ. On the 13th phratry 2005, the ECJ, in its judgment in commission v council46 held that provisions of criminal law that promote the effective implementation of community law come under the first pillar.After this decision, the European sevenss involvement in the legislative process has been on the increase. Due to this milestone decision, the European Commission has presented a second draft directive on 28th April 2006. This legislation consists only of one legal instrument, a directive. The proposal of the commission has to be adopted by the European Parliament and the council under the co decision procedure47.The latest changes come from the case law of the European Court of Justice rather than the European legislator. Regulation 1383/2003 applies at the EUs outside(a) bump intos to export, import, transshipment and outer transit. This is according to obligate 1 (1) of Regulation 1383/2003. Most of the bunt measure cases concern to transit and transshipment cases and the provision of Article 1 (1) is a TRIPS plus provision. This is because it transcends Article 51 of the TRIPS Agreement, which is restricted to imports.However, recent developments in the case law of the ECJ may bring about a change this approach. In chassis International48, the ECJ held that the external transit of grey market goods is not the use of a trade mark. Counterfeited and pirated goods under Regulation 1383/2003 are defined much m ore narrowly than the scope of protection awarded to owners of trade mark, copy and design rights.In Article 2 (1) (a) of Regulation 1383/2003 counterfeited goods are defined as goods bearing without authorisation a trade mark analogous to the trademark validly registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects from such a trademark. therefore, customs in order to take border measures have to be in the presence of a semi identical sign applied to identical goods and this is at variance with the Community law concept of risk of confusion normally resorted to in trade mark law.The rendering of pirated goods, as per the provisions of Article (2) (1) (b) of Regulation 1383/2003, is the following, goods which are or contain copies made without the respond of the holder of a copyright or related right or design right. Further, the border measure Regulation states that the infringing goods have to be copies, whereas Community law employs the concepts of reproduction and designs.The danger with the definition in Regulation 1383/2003 is that goods blocked by customs for infringing an IPR may not be classified under this very restrictive definition of counterfeited and pirated goods. This could result in the courts being forced to hold that these goods were wrongly confiscated. This is very important because in practice the customs authorities do not follow the restrictive definitions of the border measure Regulation.The definition of goods infringing a trade mark, copyright or design right should be analogous to the definition of other infringing goods, where the Regulation takes recourse to the Community or national law.If there is a challenge to a trade mark registration for non-use, then the proprietor has to demonstrate, under both the UK law and the Community Trade Mark Regulation, authentic use in the applicable period or produce valid reasons for non use.In the trade mark LABORATOIRE DE LA MER the late st Court of Appeal decision established clear guidelines in respect of registered proprietors and parties considering applications for revocation49. In this case an application was made by La Mer Technology, Inc, which had registered a number of UK trade marks as DE LA MER to revoke Goemars registration for the trade mark LABORATOIRE DE LA MER in the UK that was in respect of perfumes and cosmetics containing marine products in class 3.In the preliminary hearing the revocation application was dismissed as its use by the five sales was real and amounted to genuine use of the registered mark in the relevant non-use period. La Mers appeal made the High Court seek interpretation from the ECJ under Article 234 of the EEC Treaty. In January 2004 the ECJ gave its decision, wherein it held that the answers to the questions raised could be inferred from its earlier judgement50 in the case of MINIMAX. In other words a registered proprietor of a trade mark defending an application for revocat ion on the grounds of non-use has to furnish evidence of genuine use in an unequivocal form and well understood form to the tribunal considering the case, and proof that it is not for merely safe guarding the registration.A slogan, while being registered, should be accorded the same measure of scrutiny as any other word mark. In mouse hare Prinzip Der Bequemlichkeit or The Principle of Comfort51, this principle was upheld by the ECJ. Nevertheless, applications for slogan marks at the OHIM52 may be objected to for being descriptive of the goods or services or for being devoid of classifiable character.The Court of First exemplify held that the lack of evidence of promotional use of the mark did not signify that the slogan indicated the commercial origin of those goods or services. It also held that it was essential to consider the slogan in connection with the goods and services, and whether it was capable of being used in a descriptive or promotional context. Though the applicant showed that this mark had been registered in non-EU countries, the CFI refused to change its decision and held that the Community trade mark regime is an autonomous system and all assessments must be exclusively on the soil of the CTM Regulation, as interpreted by the Community judicature and not on precedent or on the basis of what had happened in other countries.The Board of Appeal has refused to take account of precedent slogan marks and the mark FUELING BRAND military group53, applied for in connection with a range of services in Classes 35, 41 and 42 was refused. The OHIM were able to show examples of third party use only of the words FUELING and BRAND POWER, separately.From the preceding it becomes clear that slogan marks are likely to be considered to be unregistrable if they are not imaginative or creative. On the basis of public opinion the OHIM considers such slogans as not having a distinctive character and this opinion is highly subjective.For this reason, registrabl e slogans should have a highly individualistic nature and this should be in addition to what would in general be necessary for a word mark to be registered. This is in direct contrast to the ECJs statements in relation to The Principle of Comfort. Notwithstanding this, if there is no evidence that the mark has obtained a distinctive character then such slogans may not be accorded registration by the OHIM54.In auspicate Communications Ltd v Office for Harmonisation in the Internal Market (Trade Marks, Patents and Designs (OHIM)55, The applicant wanted the Court of First Instance to annul the contested decision and pass such orders as would amend the Community trade mark application No 837096 to show TELEEYE instead of TELEYE. Under Article 63(6) of Regulation 40/94, the office has to take the necessary measures to comply with judgments of the ECJ.Hence, the Court of First Instance cannot issue directions to the Office. The applicants argument was based on Article 29(1) of Regulation No 40/94, which states that application for the Community trade mark and the trade mark relied on for the right of priority must be the same. In case it was unclear to the examiner that the applicant was applying for the Community trade mark with the same spelling as that used in the United States trade mark application should have been obvious to the examiner then changing the discrepancy between these two trade marks does not amount to a significant modification.In practice the importance of intellectual property rights depends on whether the holder can take effective measures to prevent others from infringing them. The right holder can not only take the infringer to court but he can also rebuke the infringer to desist from the acts in question. Sometimes, the main objective may be to arrive at an agreement with the infringer, in which case the right-holder will simply inform the infringer of the position with regard to IP rights and offer to discuss price and conditions.Hence , judicial enforcement is a major test of effectiveness for the rights given by the intellectual property system. A vital necessity is that successful protection against infringement should be obtainable at reasonable cost to the right holder. However, if such effective judicial procedures are already in place then these procedures by themselves already ensure that IP rights are not violated.The right to prevent others from doing certain specific acts is the basis for the legal protection of intellectual property. A right-holder can obtain an injunction to prevent an infringer from manufacturing or distributing the infringing product, from using it or performing certain other acts. Such emphasis on the right to disallow differentiates intellectual property protection from the protection offered in other civil law matters concerning the breach of an owners rights. In civil courts the usual sanction is the award of compensation to the plaintiff for infringements of his rights which ha ve already transpired, usually in relation to personal injury or property damage.The European domicile system was unable to generate a large body of European case law, because first, judgments revoking or cancelling a registered industrial property right had to be taken by the courts of the country for which the right had been granted. As the suspects in patent infringement proceedings primarily file a counterclaim for invalidity, the prospects of internationalizing the domicile principle are limited.Divergence in the case law of the EU member states is due to the cross-border injunction. Second, hindrance to liberalizing the domicile principle takes place due to cross-border competence being limited to the courts of the country where the defendant is lives or mainly conducts his business. Such competence does not extend to the country where the infringing act occurred, which, is of particular importance to the plaintiff56.Complexity An infringement action brought before a Communit y trademark court makes it extremely easy to enforce registered Community trademarks across the whole of the European Union. In case the court decides that there has been infringement, this judgment will be imposed in all EU member states in which infringement took place. Further, the damages award will be based on all such infringing acts. Finally, an injunction against any further infringement may be obtained for the whole European Union.In November 2004 the Alicante Juzgado de lo Mercantil, acting as Community trademark Court of First Instance, issued the pan EU injunction in a trademarks infringement case, in respect of the selling of fake VIAGRA and PFIZER on the internet. Since the respondent was absent at the time of the hearing, the court had issued an ex parte injunction and made an order consisting of broad measures of protection. The court ordered the defendant to cease all use of terms like VIAGRA and PFIZER, in respect of the selling of any of the products in the EU, or on the internet and also ordered the defendant to desist from using the term VIAGRA as a domain name. In IMS Health Inc v Commission of the EU Communities57, it was held that the aim of intellectual property protection is the right to leave out. On some occasions the legal capacity to exclude is referred to as monopoly.From this situation much controversy spins around the interaction of Intellectual Property Rights and argument Law. aspiration authorities have made efforts to balance the protection of intellectual property rights and market competition. Europe has taken these issues into consideration in a recent set of decisions implicating a supplier of pharmaceuticals sales data and its copyright protected data matrix.The balance between competition regulations and IP rights remains a topic for debate in most of the nations including European countries. If an IP right blocks entry into a genuinely needed facility for competing, there may be lawful public argument in order to compromise the IP right for promoting competition. However, such compromise should not be a matter of mere public public lavatory or a bare recommendation to the competitors, where competition is not threatened. Even IP rights serve a valuable public policy objective to encourage and reward creativity and to safeguard public interest. indemnity makers should make sure that interference in the matter of protecting competition fulfils that objective instead of the less productive goal of simply making life easier for competitors. In Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik58, Anheuser-Busch Inc, instituted proceedings in the Finnish courts to prevent the defendant from using certain trade marks, which were claimed to have been infringed. In an appeal to the Supreme Court, the matter was stayed for making a reference to the ECJ on issues concerning the interpretation of TRIPS agreement. The ECJ held that in case of a variety between a trademark and sign that was sus pected to have infringed the trademark TRIPS agreement will be applied, where the disagreement arose before the date of application of TRIPS but continued beyond that date.The relevant laws of Finnish trade marks had to be interpreted as far as possible in the wording and purpose of the provisions of Directive 89/04 on trade marks and TRIPS. A trade name could constitute a sign within the meaning of article 16(1) of TRIPS59. The exceptions to article 17 of TRIPS were targeted to make a third party able to use a sign which is similar to a trade mark that indicates its trade name, provided that such use was according to the sincere practices in industrial and commercial matters. A trade name which was unregistered but established by its use in the member state in which the trade mark was registered could be considered as an existing prior right as per the meaning of the third sentence of Article 16(1) of TRIPS60.The silhouette event This legal ambiguity has resulted in disagreements and in the case of Austrian sunglasses Silhouette, the ECJ rule that community wide exhaustion is the appropriate interpretation in accordance with the 1989 Directive61. This judgement indicates that Article 7(1) of the Directive barred Member States from implementing an exhaustion regime that was wider than community exhaustion.In the Silhouette case the Austrian synthesis chain, Hartlauer, bought a consignment of Silhouette sunglasses from a Bulgarian company, which had purchased the goods from Silhouette International in Austria. Silhouette claimed that the sale of the sunglasses was subject to the stipulation that these sunglasses should not be re-imported into Austria. Hartlauer were taken to court, in Austria, on the charge that the trademark rights had not been exhausted. The ECJ held that the 1989 Trademark Directive was to be considered as a complete harmonization of the Member States rules for trademarks. In accordance to this ruling all Member States have to apply the p rinciple of regional exhaustion. Nevertheless, such states that are in the EEA but outside the EU need not do so. and then the ECJ has ruled that exhaustion occurs only when the products are being sold in the EEA and this establishes that the principle of international exhaustion is not applicable within the EEA if the goods had been first placed on non EEA markets. Hence, the rights owner was able to enforce its rights in the Silhouette trademark against the defendant, Hartlauer, even though these products were genuine and had been placed on the Bulgarian market with the consent of the trademark owner. The issue of consent was adjudged in the Sebago case, where it was held that consent under Article 7(1) of the Directive had to necessarily relate to each item of the product in respect of which exhaustion is pleaded.The Swedish Competition Authority, in a report, referred to the ruling of the EFTA Court in the Maglite case62 which preceded the Silhouette ruling by six months. In thi s case a Norwegian company was importing Maglite lanterns from the US. The Norwegian general agent sued the importer for breach of Norwegian trademark law as well as the EU Trademark Directive. The EFTA Court held that the EEA agreement did not entail any common trade policy in relation to a third country and that a regional exhaustion requirement would severely restrict freedom of trade in respect of third countries. According to the Maglite and Silhouette rulings though regional exhaustion is applied in the EU, non-EU members of the EEA can resort to parallel imports into the EU through those countries legally. This could result in considerable legal uncertainty63.Bibliography.Anderson, Ross. The Draft IPR Enforcement Directive A Threat to Competition and to Liberty. Fipr. Retrieved from http//www.fipr.org/copyright/draft-ipr-enforce.html on phratry 23, 2006Annual Enforcement Report 2004. The patent Office. DTI United Kingdom. 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