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Law of 22 May 2009 implementing Law Directive 2004/48/EC
Law of 22 May 2009 implementing Law Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and designating the competent courts in community designs matters in Luxembourg.
On May 22, 2009, the Grand Duchy of Luxembourg voted the law that implements the European Directive of 2004. This law was published in the Gazette on May 28.
1. Directive 2004/48/EC on the enforcement of intellectual property rights
This community instrument is aimed at encouraging innovation and creation, at increasing the related investments to promote the economic development within the Single Market, and at making sure that intellectual property rights (IPR) is are enforced in the European Community. The rights involved are copyrights, neighbouring rights, software, databases, semi-conductor device topographies, biotech inventions, patents, designs, trademarks, geographical indications, utility models, plant varieties, and sometimes trade names.
In this perspective, harmonizing civil and administrative proceedings (not criminal) as well as conservation and compensation measures settled by Member States was necessary, so that community level rights could be enforced and asserted the same way on a sole territory. Some of the dispositions have then been improved, when others have simply been created in countries that did not know them prior to 2004.
These new measures can be requested by IPR owners, people authorized to use IPR (e.g. licensees), IPR administration entities, or certain trade associations defending their members’ rights.
Bound by the directive, Member States are now required to implement in their national laws provisional and conservatory measures such as summary procedures (if an imminent breach of IPR is suspected), interdictions of use with constraint, description by experts, seizures and deliveries of alleged counterfeiting goods, definitive setting aside from commercial channels, destructions, publications of court decisions, etc.
The evidence system has also been revised, such as that of the evaluation and compensation of the prejudice (damages calculated either on the basis of the actual breach, or on a fixed-price), so that injured owners can be encouraged in asserting their rights and suing infringers and counterfeiters.
Their information right as to the origins and distribution networks of the suspected goods has been reinforced as well. The alleged counterfeiter can now be asked to give the owner any banking, financial or commercial document that could prove the alleged breach.
2. Luxembourg law
Their information right as to the origins and distribution networks of the suspected goods has been reinforced as well. The alleged counterfeiter can now be asked to give the owner any banking, financial or commercial document that could prove the alleged breach.
Since May 22, the Grand Duchy of Luxembourg has integrated into its domestic legislation the new rules to be applied, within the European Community, to proceedings, provisional and conservatory measures in intellectual property matters.
It amends the previous laws on copyright, neighbouring rights, databases and patents, so that the following new dispositions should be taken into consideration.
Counterfeiting can be proven by any means, and among others by the recourse to an expert who will make a description of any object, item, document or process likely to establish the act of counterfeiting, its origin, scope, and destination. The description will notably be performed upon extracts, copies, photographs, audiovisual recordings and samples. The expert is appointed by the court, and his mission, which is strictly defined by the judge, shall not exceed two months.
In case of emergency, the court dealing with the summary procedure can also require that the IPR owner first give a bail or a guarantee, to anticipate the event when the measures taken against the alleged infringer would be excessive and would thus justify compensation.
Provisional and conservatory measures must then lead to the bringing of a counterfeiting action before the competent courts within the time allotted by the court order, or within one month. Otherwise, the restraining order will no longer be effective.
This legal procedure can result in the seizure of the real estate and personal property of the alleged counterfeiter, which will notably allow freezing his bank accounts. Thus, the continuation of his counterfeiting activities will be hampered, and the IPR that based the summary procedure will be partially safeguarded.
Besides the implementation of provisional and conservatory measures aiming at enforcing IPR, the law of 22 May 2009 has also designated the Luxembourg district court as being competent to rule in first instance in community designs matters.
It will moreover have jurisdiction in patent cancellation or contestation actions, regardless of the value of the case brought before the judge.