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Summary Intellectual Property Law & Practice 2018 summmary materials, lectures and case law $4.81
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Summary Intellectual Property Law & Practice 2018 summmary materials, lectures and case law

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Intellectual Property Law & Practice 2018 summmary materials, lectures and case law. Year: 2017/2018. All relevant materials, lectures and case law in one document (30 pages).

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  • March 26, 2018
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IPLP – Summary

Lecture 1

WIPO, IPR Handbook, Chapter 4, Enforcement of Intellectual Property Rights, nrs. 4.1 - 4.52

Enforcement of industrial property rights
- Oppositon proceedings at industrial property ofces e.g. registraton dispute) – prevent
older rights from being overlooked  owners of earlier rights must be able to object
- In some countries there is no provision for oppositon
- Trademarks: pre-registraton oppositon

Civil court procedures
- Provisional measures: injuncton to stop the infringer

Counterfeitng
- Detecton by rightholders or law enforcement ofcers
- Stff penaltes and seirure 3 destructon of goods
- Another possibility is to alert customs authorites

Enforcement of patent rights
- Scope: claims descripton, drawings – to interpret the claims) as mentoned in the patent
specifcaton  Scope of protecton by interpretaton of the claims
- Costly, tme consuming proceedings – assess whether you have a chance

Enforcement of copyright and related rights
- Evoluton of internatonal standards for encforcement of copyright and related rights 
advance of technological means for the creaton and use of protected material + increasing
economic importance of IP protected goods
- Enforcement in internatonal conventons:
o Obligaton for states to provide adequate means for enforcement of rights
o BC: infringing copies are subject to seirure artcle 16 and 13)
o BC, Rome and Phonograms Conventons also contain provisions requiring
appropriate enforcement measures
 Do not provide natonal governments enough guidance concerning
appropriate and modern standards for the enforcement of rights 
evoluton of new standards

Natonal legislaton concerning enforcement of rights
- Importance of provisional measures, available on ex parte basis
o Temporary preliminary injunctons to prohibit the commitng or contnuaton of the
commitng of infringements
- Purposes of civil remedies: compensaton, dispose of infringing copies 3 implements and to
grant injuncton to prohibit further infringements
o Not always sufcient deterrents  Criminal law: fnes and imprisonment

Border measures: prevent infringing copies from entering a country by customs authorites

,World Trade Organiraton, ‘TRIPS: A More Detailed Overview of the TRIPS Agreement’, secton on
‘Enforcement of Intellectual Property Rights’

Enforcement in TRIPs. Objectves:
- Ensure that effectve means are available to rightholders
- Ensure that enforcement procedures are applied in such a manner as to avoid the creaton of
barriers to legitmate trade and to provide for safeguards against their abuse

General obligatons art. 41 TRIPs)
- Permit effectve acton against any act of infringement of intellectual property rights
- Remedies must be expeditous in order to prevent infringements and they must consttute a
deterrent to further infringements
- Avoid the creaton of barriers to legitmate trade and to provide for safeguards against the
abuse of procedures
- Due process
- Procedures must be fair, equitable, not unnecessarily complicated or costly, not entail
unreasonable tme-limits 3 delay

Civil and administratve procedures and remedies artcle 42-49 TRIPs)
- Due process
- Evidence rules
- Court must be able to order injunctons
- Pay damages and expenses of the rightholder if the infringer acted in bad faith
- Disposal or destructon of infringing goods + materials used in the producton of these
infringing goods implements)
- Inform rightholder on identty of people involved in the producton of infringing goods 3
distributon channels
- Adequate compensaton defendant if the provisions are abused

Provisional measures artcle 50 TRIPs)
- Ensure that judicial authorites can take prompt and effectve provisional measures
- Measures to prevent an infringement from occurring
- Prevent infringing goods from entering the channels of commerce
- Preserve relevant evidence in regard to the alleged infringement
- Judiciaries must be able to adopt provisional measures without prior hearing of the other
- Appropriate compensaton if no infringement is found
- Measures shall be revoked if no date for the proceedings on merits is initated within
reasonable period set by the court or 31 days

Border measures art. 51-60 TRIPs)
- MS must designate a competent authority to which applicatons by right holders for customs
acton shall be lodged
- Necessary provisional measures against the importaton of infringing goods
- Disposal or destructon of infringing goods


Criminal procedures art. 61 TRIPs)
- MS can decide whether they provide for criminal proceedings and penaltes
- Sanctons: imprisonment, monetary fnes to provide a deterrent, seirure, forfeiture and
destructon of the infringing goods and implements

,Frankel & Gervais, p. 5-14; p. 111-112

Paris Conventon
- Covers industrial property: trademarks, patents, designs and confdental informaton
- Trade with foreign countries world fairs) – prevent foreigners from stealing your ideas

Berne Conventon
- Covers “author’s rights”
- Movement led by Victor Hugo

 Led to the formaton of WIPO: negotates trade aspects of intellectual property

WTO – TRIPs is annex to the establishing agreement of the WTO Marrakesh Agreement)
- Trade organisaton aimed at enhancing internatonal trade

TRIPs: minimum legal standards that countries must implement in their legislaton

WTO dispute setlement procedure
- Member advises DSB Dispute Setlement Body) of possible dispute with other member
- Consultatons, if they fail the member can ask a panel to be established which organises one
or more hearings
- Appellate body: appeal to the decisions of the panel permanent body)
- Panel issues a report – only binding if the DSB adopts it adopted unless there is a consensus
not to do so)
- Main enforcement: trade retaliaton impositon of tariffs)
- If a member fails to modify its legislaton of practce  cross-retaliaton: impositon of trade
sanctons in areas other than IP

IP & IT Litgaton in Europe: a Legal Guide for Foreign Lawyers, 2016, secton on The Netherlands in
chapter 'Important Milestones of a Trial' p. 232-244).

Proceedings in IP
- Preliminary kort geding)
o Urgent interest  infringement implies an urgent interest
o Only preliminary measures to be awarded
o Both partes can argue their case
o Substantve proceedings should be started within a reasonable period afer an
injuncton has been obtained
- Substantve proceedings bodemprocedure)
o Procedural documents
o Further briefs
o Oral proceedings

Milestones of the civil lawsuit
- Competence
o Absolute: district court or sub-district court claims with a maximum of 25000)
o Relatve: region: domicile of the defendant
- Writen pleadings in frst instance
- Oral hearing in frst instance
- Judgment in frst instance
- Appeal

, - Cassaton

Preliminary ruling can be requested at the CJEU.

Judge can impose all lawyer fees in IP cases) – costs should be realistc

Damages or surrender of profts can be requested in substantve proceedings not in preliminary
proceedings)
- Damages only awarded if the defendant can be held responsible for the IP infringement and3
or has acted in bad faith
- Actual damages difcult to calculate)
- Awarding punitve damages or awarding double 3 triple damages is not possible under Dutch
law

Evidence
- Burden of proof on the plaintff, but can be shifed when reasonable
- Preliminary proceedings: assertons do not have to indisputable but sufciently plausible
- Witnesses and experts are possible

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