Christian Engström, Pirat

5 juni 2013

EU trademark law revision and access to medicines

Filed under: informationspolitik — Christian Engström @ 16:27

The EU has just started a revision of the legislation for trademarks in Europe. The revision will be done through a package consisting of three parts:

The first two parts of the package will be handled by the Parliament and the Council according the the ordinary procedure (i.e.: what was called ”co-decision” before the Lisbon Treaty).

The fee regulation will be decided by the Commission according to the (pre-Lisbon) comitology procedure — at least this is what the Commission wants. This would mean that the European Parliament would get no say at all on this part of the package.

To a large extent the revision is a rather technical exercise, dealing with details of the trademark registration procedures that few people who are not trademark lawyers would be interested in.

But this is the EU, so whenever the Commission presents an IPR related proposal, you can expect it to contain at least some attempt at a major landgrab on behalf of rightsholders.

Here is a first and major one:

The Commission proposes to extend trademark rights to cover goods in transit as well.

On page 6 and 7 in the pdf with the Directive, the Commission gives the following explanation:

6. Goods brought into the customs territoryAccording to the Court of Justice in the Philips/Nokia judgment[12], the entry, presence and movement of non-EU goods in the customs territory of the EU under a suspensive procedure does, under the existing acquis, not infringe intellectual property rights as conferred by substantive law of the Union and its Member States. Such goods can only be classified as counterfeit once there is proof that they are subject of a commercial act directed at EU consumers, such as sale, offer for sale or advertising. The implications of the Philips/Nokia judgment have met with strong criticism from stakeholders as placing an inappropriately high burden of proof on rights holders, and hindering the fight against counterfeiting. It is evident that there is an urgent need to have in place a European legal framework enabling a more effective fight against the counterfeiting of goods as a fast-growing activity. It is therefore proposed to fill the existing gap by entitling right holders to prevent third parties from bringing goods, from third countries, bearing without authorization a trade mark which is essentially identical to the trade mark registered in respect of those goods, into the customs territory of the Union, regardless of whether they are released for free circulation.

This corresponds to (new) Recital 22 in the Directive:

(22) With the aim of strengthening trade mark protection and combatting counterfeiting more effectively, the proprietor of a registered trade mark should be entitled to prevent third parties from bringing goods into the customs territory of the Member State without being released for free circulation there, where such goods come from third countries and bear without authorization a trade mark which is essentially identical to the trade mark registered in respect of such goods.

and (new) paragraph 5 in (renumbered) Article 10 in the Directive:

5. The proprietor of a registered trade mark shall also be entitled to prevent all third parties from bringing goods, in the context of commercial activity, into the customs territory of the Member State where the trade mark is registered without being released for free circulation there, where such goods, including packaging, come from third countries and bear without authorization a trade mark which is identical to the trade mark registered in respect of such goods, or which cannot be distinguished in its essential aspects from that trade mark.

The Regulation for (pdf, search for the word ”customs”) contains the corresponding provisions for Community Trademarks.

This almost certainly has implications for access to medicines if it gets adopted, but I’m not enough of an expert on access to medicines to say exactly what those implications would be. But there are other people and organisations that are, so I hope that they will take a closer look at this.

Apart from this, there may very well be other issues in the trademark package that need to be scrutinised more closely. I look forward to comments in due course.

The devil is always in the detail. But the swarm is good at sorting through details.

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