The Gordian Knot of European Union Competence: Commercial Aspects of Intellectual Property After the Judgment in Case C-414/11Daiichi Sankyo

2014 ◽  
Vol 15 (3) ◽  
pp. 511-528
Author(s):  
Boryana Gotsova

The division of external competences between the European Union and the Member States is a long-standing object of contention for constitutional and practical reasons. The competence to negotiate and conclude international agreements in a given area has as many highly political implications as concrete policy-making ones. This tension is well illustrated by the field of the commercial aspects of intellectual property. Community, and later Union, competence over this area was established only gradually. After multiple Treaty revisions and legal disputes over competence, the Treaty of Lisbon now lists the field as one of the main elements of the Union's Common Commercial Policy (CCP). The CCP itself is one of the founding policies, dating back to the European Economic Community. It structures the Union's trade relations with third countries, encompassing bilateral and multilateral trade and tariff agreements, as well as unilateral trade defense measures such as anti-dumping and anti-subsidy instruments. Today, the Treaty of Lisbon expressly provides for exclusive Union competence over the CCP, codifying the case law of the Court of Justice.

2013 ◽  
Vol 15 ◽  
pp. 139-167
Author(s):  
Ester Herlin-Karnell ◽  
Theodore Konstadinides

Abstract The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.


Author(s):  
Pavlo V. Makushev ◽  
◽  
Andriy V. Khrid�chkin ◽  

The article considers the features of public administration in the field of intellectual property and the conceptual basis for the formation of its procedures in the European Union. The conceptual bases of formation and development of procedures of public administration in the field of intellectual property in the countries of the European Union are opened. The pluralism of approaches to the definition of public administration procedures in the field of intellectual property in the countries of the European Union is analyzed. The normative-legal base of procedures of public administration in the field of intellectual property in the countries of the European Union is given. The acts of the Court of Justice of the European Communities on public administration in the field of intellectual property are analyzed. It is proved that the formation of European private law is due to the purpose of creating and functioning of a common market. It is established that in the national legal systems of European countries the regulation of public relations in the field of intellectual property is given considerable attention. The process of improving the procedures of public administration in the field of intellectual property in the European Union is analyzed and the legal framework of this process is given. A feature of European Union law is to strengthen the protection of intellectual property rights through two main mechanisms: harmonization of legislation of member states of the European Union and the introduction of European Union protection documents for various intellectual property. Thus, other partner countries of the European Union, in addition to measures to approximate legislation, may decide on the signing of agreements on entry into the regional European system of protection of certain intellectual property. The member states of the European Union pursue a coherent policy in the field of legal protection and use of intellectual property. Guided by the principle of free movement of goods and services, they focus their efforts primarily on the unification and harmonization of legislation in the field of intellectual property and prevention of the use of intellectual property rights in unfair competition. Within the European Union, a system of direct regulation of the processes of unification and harmonization of legislation in the field of intellectual property, which is especially characteristic of the field of copyright and related rights. The Court of Justice of the European Communities plays a significant role in the unification and harmonization of the legal regulation of relations in the field of intellectual property. In the absence of appropriate harmonization of national legislation in the field of intellectual property with the principles of free movement of goods and services, as well as freedom of competition, proclaimed by the European Union, the importance of the case law of the European Court of Justice is difficult to overestimate. The beginning of unification and harmonization activities in the field of intellectual property protection is preceded by a stage of case law enforcement practice, which allows to identify existing gaps in legal regulation and solve relevant problems. At present, it is a question of the existence of a special system of intellectual property rights of the European Union, formed in its general features, built on principles different from the traditional national ones, with a special subject of regulation. At the same time, this system is a new legal phenomenon that is developing quite dynamically and rapidly along with national and international legal systems. The legal regulation of intellectual property relations in the European Union aims to ensure a high level of protection of these rights, as they are the legal basis for the protection of the results of creative activity. The conclusion about the urgency of research of problems of public administration in the field of intellectual property in the countries of the European Union is made.


2013 ◽  
Vol 15 ◽  
pp. 139-167 ◽  
Author(s):  
Ester Herlin-Karnell ◽  
Theodore Konstadinides

AbstractThe principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.


2021 ◽  
Author(s):  
Çiğdem Yatağan Özkan

Abstract The Messi case,1 which originated with the decision of the European Union Intellectual Property Office (EUIPO) in 2011 and was finalized in 2020, surprised the IP world/practitioners with the remarks of the first instance court and the Court of Justice of the European Union (CJEU) as their findings were contrary to the established case law regarding the implementation of the relative grounds of refusal. Lionel Messi was a party to the court case as the applicant of the later application for the same classes of goods; the first instance court overruled the appeal of the owner of the earlier trademark based on relative grounds, given Lionel Messi’s reputation as a famous football player and thus the reputation of his surname ‘Messi’, even though the two trademarks were considered visually and phonetically similar. It was reiterated in the court decision that the reputation of the owner of the later trademark application neutralized the likelihood of confusion with the earlier trademark. Moreover, the judgment (dated 17 September 2020) of the Tenth Chamber of the CJEU went beyond the ordinary scope of trademark law. In this study we will discuss, in the context of the Messi decision, the influence of the reputation of a later trademark on conceptual differentiation and the possible results of not adducing evidence proving the reputation of a trademark.


Author(s):  
Naômé Caroline

This book describes the rules governing appeals before the Court of Justice of the European Union. The appeal is the judicial remedy by which a party may contest a decision of the General Court of the European Union. It concerns matters in which the Tribunal has jurisdiction such as, competition, mergers, state aids, access to documents, restrictive measures, EU staff, trade marks, and other areas of intellectual property. This form of judicial remedy was created just over 25 years ago. It is specific to the ECJ, and can only be learned through the case-law. This book is a description of the case-law, and of the rules that the lawyers pleading appeal cases are required to know.


2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.


2014 ◽  
Vol 7 (2) ◽  
pp. 209-226 ◽  
Author(s):  
Inga Daukšienė ◽  
Arvydas Budnikas

ABSTRACT This article analyzes the purpose of the action for failure to act under article 265 of the Treaty on the Functioning of the European Union (TFEU). The statements are derived from the analysis of scientific literature, relevant legislation, practice of the European Union Court of Justice (CJEU) and the European Union General Court (EUGC). Useful information has also been obtained from the opinions of general advocates of the CJEU. The article of TFEU 265, which governs the action for failure to act, is very abstract. For this reason, a whole procedure under the article 265 TFEU was developed by the EU courts. The original purpose of the action for failure to act was to constitute whether European Union (EU) institution properly fulfilled its obligations under the EU legislation. However, in the course of case-law, a mere EU institution’s express refusal to fulfill its duties became sufficient to constitute that the EU institution acted and therefore action for failure to act became devoid of purpose. This article analyzes whether the action for failure to act has lost its purpose and become an ineffective legal remedy in the system of judicial review in the EU. Additionally, the action for failure to act is compared to similar national actions.


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