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EU Intellectual Property Law and Policy

Catherine Seville

Intellectual property remains not just economically significant, but also of daily importance to most businesses and individuals. The digital age brings many opportunities, but also presents continuing challenges to IP law, and the EU’s programme of harmonisation unfolds in this context. Taking account of numerous changes, the second edition of this accessible book offers a fully updated account of the law as it affects all the major rights, free movement and competition matters, and enforcement. It sets the substantive law in its policy context, and discusses potential reforms to this major area of EU law.
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Catherine Seville


Table of cases

Table of legislation

Table of treaties and international agreements

1.    Introduction

2.    Copyright and related rights

2.1 Introduction

2.2 International conventions

2.2.1 Early bilateral agreements

2.2.2 The Berne Convention

2.2.3 The Universal Copyright Convention

2.2.4 The Rome Convention

2.2.5 TRIPS

2.2.6 The WIPO Internet Treaties

2.2.7 The Beijing Treaty on Audiovisual Performances

2.2.8 The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled

2.3 The influence of the European Union

2.3.1 An early survey: the Commission’s 1988 Green Paper

2.3.2 The Software Directive

2.3.3 The Rental Directive

2.3.4 The Satellite and Cable Directive

2.3.5 The Term Directive

2.3.6 The Database Directive

2.3.7 The E-Commerce Directive

2.3.8 The Information Society Directive

2.3.9 The Resale Right Directive

2.3.10 The Orphan Works Directive

2.3.11 The Collective Rights Management Directive

2.3.12 Future Reforms

3.    Patents and related rights

3.1 Introduction

3.2 The global patent environment

3.2.1 The Paris Convention

3.2.2 The Patent Cooperation Treaty

3.2.3 TRIPS

3.2.4 The Convention on Biological Diversity

3.2.5 The Patent Law Treaty

3.3 The European Patent Environment

3.3.1 The European Patent Convention History EPC 2000 – major changes EPC – overview and procedure Opposition proceedings Substantive harmonisation – limits and definitional challenges Article 69 – interpretation of claims European patent – substantive requirements

(1) Novelty – Article 54

(2) Inventive step – Article 56

(3) Industrial application – Article 57

(4) Excluded subject matter and exceptions to patentability – Article 52(2) – Article 53

(i)  The boundary between discoveries and inventions

(ii) Computer programs and computer-related inventions; business methods

(iii)  Biological subject matter – Article 53(b)

(iv) Methods for treatment of the human or animal body – Article 53(c)

(v)  Morality – Article 53(a)

(5) Sufficiency of disclosure

3.3.2 Other legislative initiatives in European patent law: the London Agreement and the EPLA The London Agreement The European Patent Litigation Agreement (EPLA)

3.3.3 Community initiatives in the field of patent law The Community patent: context and history The unitary patent Supplementary protection certificates The Biotechnology Directive: the legal protection of biotechnological inventions Utility models

3.4 Plant variety rights

3.4.1 History of protection

3.4.2 The UPOV Convention

3.4.3 The Community plant variety right

4.    Designs

4.1 Introduction – the concept of design

4.2 First steps towards EU harmonisation

4.3 Registered Community Design

4.4 The Community definition of ‘design’

4.5 Grounds of invalidity

4.5.1 Absolute grounds for invalidity

4.5.2 Relative grounds for invalidity

4.6 The design proprietor’s rights

4.6.1 Initial entitlement

4.6.2 Assignment and licences

4.6.3 Duration

4.6.4 Rights conferred by the design right

4.6.5 Exceptions and defences

4.7 Jurisdiction and parallel proceedings

5.    Trade marks and related rights

5.1 Introduction

5.2 Treaties administered by WIPO

5.2.1 The Paris Convention

5.2.2 The Madrid Agreement

5.2.3 The Madrid Protocol

5.2.4 The Trademark Law Treaty

5.2.5 The Singapore Treaty on the Law of Trademarks


5.4 Community Trade Mark Legislation

5.4.1 Overview

5.4.2 Applying for a Community trade mark

5.4.3 Criteria for registration

(a) What is a registrable mark?

(b) The absolute grounds for refusal

 (1) Signs which do not conform to the requirements of a trade mark

 (2) ‘Devoid of any distinctive character’

 (3) Descriptive marks

 (4) Customary and generic marks

 (5) Acquired distinctiveness

 (6) The shape exclusions

 (7) The remaining absolute grounds for refusal

(i)  Public policy and morality

(ii) Deceptive marks

(iii) Special emblems and marks prohibited by law

(iv)  Bad faith

(c) Relative grounds for refusal

(1) Earlier trade marks

(i)  Identical trade marks and identical goods

(ii) Confusingly similar marks and goods

(iii) Marks with a reputation

(2) Earlier rights (business identifiers)

5.4.4 Cancellation of a mark Invalidity Revocation

5.4.5 Infringement

5.4.6 Defences

5.4.7 Other EU harmonisation initiatives relevant to trade marks

(a) Misleading and comparative advertising

(b) Unfair Commercial Practices Directive

(c) Domain names

5.4.8 Community trade marks as objects of property

5.4.9 Future reforms

5.5 Geographical indications of origin

5.5.1 Introduction

5.5.2 International treaties

5.5.3 TRIPS

5.5.4 The EU regime

(1) Geographical indications and designations of origin

(2) Traditional specialities guaranteed

(3) Optional quality terms

6.    Intellectual property, free movement and competition

6.1 Free movement of goods – an introduction

6.1.1 Overview of the problem – three typical cases

6.1.2 Intellectual property rights – different rights have different purposes

6.2 Intellectual Property and free movement of goods in the EU

6.2.1 The treaty: the basic legal framework

6.2.2 Early case law: the distinction between existence and exercise of rights

6.2.3 Specific subject matter: definitions

6.2.4 What is ‘consent’ for the purposes of exhaustion of rights? Trade marks and the retreat from common origin Patent rights and the nature of consent Copyright and neighbouring rights: exhaustion beyond the distribution right?

6.3 Repackaging: balancing the principle of free movement against the trade mark owner’s rights

6.3.1 Pharmaceuticals

6.3.2 Repackaging principles – application to other products?

6.4 Use of another’s trade mark in advertising

6.5 Goods in transit

The Border Measures Regulation

6.6 Exhaustion: national, EEA-wide or international?

6.7 Competition law and intellectual property

6.7.1 Article 101


Licensing agreements

The modern approach to the licensing of intellectual property

Copyright licensing – the challenges of the digital market

Collecting societies

Article 101 and the pharmaceutical industry

Block exemptions – technology transfer

6.7.2 Article 102

Abuse of a dominant position within the internal market

Refusal to supply, refusal to license on reasonable terms

Standard essential patents

Should the pharmaceutical sector be treated as a special case for the purposes of Article 102?

7.    Enforcement of intellectual property rights


7.2 European Community Measures

7.2.1 The Enforcement Directive 2004/48/EC

7.2.2 Border measures

7.2.3 Jurisdiction – The Brussels Regulation

7.2.4 The proposed Trade Secrets Directive