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6.2.4.  Protection of intellectual and industrial property in the EU

    The internal market has become the appropriate environment for achieving economies of scale in the analogue or digital exploitation of intellectual property, which accounts for more than 5% of the EU's gross domestic product (GDP). EU-wide protection of intellectual and industrial property helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Hence, intellectual property has been recognised as an integral part of property and one of the keys to added value and competitiveness [see also sections 10.3 and 23.4]. A Green Paper on ''Copyright in the knowledge economy'' launched a debate on the long-term future of EU copyright policy [COM/2008/466].

    Already, a Directive concerns the legal protection of copyright and related rights in the framework of the internal market, with particular emphasis on the information society [Directive 2001/29]. It provides a secure environment for cross-border trade in copyright-protected goods and services and facilitates the development of electronic commerce in the field of new and multimedia products and services. It harmonises the rights of reproduction, distribution, communication to the public, the legal protection of anti-copying devices and rights management systems. Member States must, in particular, provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works; (b) for performers, of fixations of their performances; (c) for phonogram producers, of their phonograms; (d) for the producers of the first fixations of films, in respect of the original and copies of their films; and (e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite. This Directive also serves to implement a number of international obligations, notably the World Intellectual Property Organisation (WIPO) "Copyright Treaty" and the "Performances and Phonograms Treaty", which improve the means to fight piracy world-wide. Another Directive lays down requirements necessary to ensure the proper functioning of the management of copyright and related rights (including authors’ rights in musical works for online use) by collective management organisations [Directive 2014/26].

    Another directive establishes measures and procedures to ensure the enforcement of intellectual property rights, including industrial property rights [Directive 2004/48]. It requires the Member States to apply effective, dissuasive and proportionate remedies and penalties against anyone engaging in counterfeiting and piracy so as to create a level playing field for rightholders in the EU. It includes procedures covering evidence, the protection of evidence and provisional measures such as injunctions and seizure. Remedies available to rightholders include the destruction, recall or permanent removal from the market of illegal goods, as well as financial compensation, injunctions and damages. The Office for Harmonisation in the Internal Market (OHIM) is entrusted with tasks related to the enforcement of intellectual property rights [Regulation 386/2012].

    A Directive protects on the territory of the EU every trade mark in respect of goods or services which is the subject of registration or of an application in a Member State for registration as an individual trade mark, a collective mark or a guarantee or certification mark, or which is the subject of a registration or an application for registration in the Benelux Trade Mark Office or of an international registration having effect in a Member State [Directive 2015/2436]. Member States remain free to fix the provisions of procedure concerning the registration, the revocation and the invalidity of trade marks acquired by registration.

    Thanks to the EC/EU's accession to the Protocol relating to the Madrid Agreement concerning the international registration of marks, European firms obtain, by submitting a single application, protection of their trade mark not only throughout the European Union, as a Community trade mark, but also in countries that are a party to the Madrid Protocol [Protocol and Decision 2003/793]. Conversely, holders of international registrations under the Madrid Protocol may apply for protection of their trade marks under the Community trade mark system.

    The Court of Justice has established the principle that copyright, like other industrial and commercial property rights, falls within the scope of the Treaty and that, consequently, any discrimination on grounds of nationality in the national laws governing the extent or exercise of such rights is prohibited [Case C-92/92]. According to the Court of Justice, Directive 89/104 protects the proprietors against imports into the EU, without their consent, of products bearing their trade mark, which have been put on the market of a third country [Case C-355/96].

    Companies that wish to adapt their activities to the scale of the EU have at their disposal the legal instrument of the EU trade mark, enabling their products or services to be distinguished by identical means throughout the entire European Union [Regulation 2017/1001]. A Community trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods produced by one firm from those produced by other firms. The Community trade mark provides uniform protection throughout the European Union, which can be obtained by means of a single procedure. This protection enables the proprietor to prevent any other person from using the mark for the same products or services or for similar products if there is a danger of confusion. The application for an EU trade mark is filed at the European Union Intellectual Property Office and is registered for not less than five years.

    As regards industrial property, a Directive seeks to guarantee effective legal protection for industrial designs (in machinery, tools, electronic equipment, etc.), by defining a "design", by establishing the conditions governing its protection and the scope of protection including the exclusive right to use the design [Directive 98/71]. The Community Design provides uniform protection throughout the European Union for registered designs managed by the Office for Harmonisation in the Internal Market (Trademarks and Designs) in Alicante [Regulation 6/2002].

    Innovative businesses are increasingly exposed to dishonest practices aimed at misappropriating trade secrets, such as theft, unauthorised copying, economic espionage or the breach of confidentiality requirements, whether from within or from outside of the Union. Recent developments, such as globalisation, increased outsourcing, longer supply chains, and the increased use of information and communication technology contribute to increasing the risk of those practices. Therefore, a Directive lays down rules on the protection against the unlawful acquisition, use and disclosure of trade secrets [Directive 2016/943]. On the basis of this Directive, Member States must provide for the measures, procedures and remedies necessary to ensure the availability of civil redress against the unlawful acquisition, use and disclosure of trade secrets.

    Traditionally, European patents are granted by the European Patent Office (EPO) on the basis of a single application. Yet after grant, each European patent is in fact a bundle of national patents which need to be separately validated in each Member State. The patent reform obtained with enhanced cooperation enables, since 2013, any inventor to obtain unitary patent protection for 25 EU Member States (except Italy and Spain) without the need for validation in the individual Member States [Regulations 1257/2012 and 1260/2012]. Unitary patent protection fosters scientific and technological advances and the functioning of the internal market by making access to the patent system easier, less costly and legally secure.  It improves also the level of patent protection by making it possible to obtain uniform patent protection in the participating Member States and eliminates costs and complexity for undertakings throughout the Union. It is available to proprietors of a European patent from both the participating Member States and from other States, regardless of their nationality, residence or place of establishment.

    An EC Directive provides a stable legislative framework for the protection of biotechnological inventions allowing the use of research results while taking account of the ethical aspects, relating, in particular, to the protection of the human body [Decision 2016/835]. A Regulation created a supplementary protection certificate for plant protection products, allowing a further five years’ protection for inventions in the plant protection field after the basic patent has expired [Regulation 1610/96].

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    Your roadmap in the maze of the European Union.

    Based on the book of Nicholas Moussis:
    Access to European Union law, economics, policies
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