Edited by Paul Torremans
Chapter 17: Making sense of Article 13 of the Enforcement Directive: Monetary compensation for the infringement of intellectual property rights
The process of harmonising national laws, as conducted in the European Union (‘EU’), can often seem akin to contract negotiation in one specific respect; one starts with a draft of a provision with a clear meaning which, whilst quite possibly partisan, is at least (or ought to be) internally consistent and coherent, but which then, in the course of negotiation, all too often becomes, from an objective perspective, increasingly obscure, allowing each party to think (often erroneously) that it has salvaged what it needs from the provision. Article 13 of Directive 2004/48/EC on the enforcement of intellectual property rights (‘the Directive’) provides a fine example of the product of just such an exercise in the approach it adopts towards the relationship between the damage suffered by the rightholder by reason of the infringement of its rights, and the profits made by the infringer by reason of its infringement of such rights. This chapter reviews the background to this somewhat confusingly expressed provision, and considers how the national courts of some EU Member States have sought to make sense of it. In the EU (and the rest of the EEA) the starting point for the assessment of monetary compensation for the infringement of intellectual property rights is now Article 13 of the Directive, which measure applies to most types of intellectual property.
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