Proposed EU Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights

Stakeholder meeting 26 June

1. There was a broad discussion of the scope of the proposed Directive, various points were made:

  • Defns included in the Border Regulation (1383/2003) may be relevant, but this Regulation covers patents as well as counterfeiting and piracy;
  • registered rights are perhaps a more reliable basis as they are examined therefore more "secure", but again further complications as designs has both registered and unregistered rights, and recent ECJ judgments have failed to clarify database rights;
  • also in some cases (patents) accidental infringement is a recognised part of the business process;
  • one approach is to limit the Directive to EC law although this could cause complications where there is a need for a consistent approach to national and Community rights eg. trade marks and designs.

2. Reference was made to need to take account of the nature of the infringement, was it intentional, willful, did it cause economic harm. Can "commercial scale" be further elaborated. Concerns expressed that the Directive might harmonise down and therefore dilute our current "gold standard" UK and could lead to forum shopping.

3. Since the meeting a report on European Parliament's first reading External Link has been published and a report of the latest Council Working Party on Substantive Criminal Law discussion External Link (4 June) . A further discussion of the proposed Directive is expected during the current Portuguese Presidency.