NIPC Law

European Commission Author:  Amio Cajander Source Wikipedia Creative Commons Licence A Euro-defence is an answer to a claim for the infringement of an intellectual property or other right under national law based on the primacy of European Union law. In the early days of our membership of what used to be called the European Economic Community such defences were pleaded quite regularly and they often succeeded. Probably the high water mark was Magill  ( Radio Telefis Eireann and Others v Commission of the European Communities   [1995] 4 CMLR 718, [1995] EUECJ C-241/91P, [1995] EMLR 337, [1995] All ER (EC) 416, [1995] ECR I-743, [1995] FSR 530, [1998] Masons CLR Rep 58) where the Court of Justice held that the enforcement of broadcasters' copyrights constituted an abuse of a dominant position within the meaning of art 86 of the Treaty of Rome (now  art 101 of the Treaty on the Functioning of the European Union as it has now bec...

One of the fundamental principles of the European Union is that it "shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries" (art 28 (1) of the  Treaty on the Functioning of the European Union ( "TFEU" ). Art 34 of the TFEU further provides: "Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States." However, this is subject to the following exception provided by art 36: "The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals ...

My first inkling that the Lisbon Treaty was not something that IP practitioners could ignore was when I saw the following paragraph in the EPO's press release on the "EU patent" of 18 Dec 2009: "With the entry into force of the Lisbon Treaty, the European Union replaced and succeeded the European Community and has been endowed with legal personality. Therefore, the Community patent is now called the "EU patent" and the European and Community Patent's Court (ECPC)" has been renamed the "European and European Union Patent's Court (EEUPC)". The reason for my double take was that the EU has been in existence ever since the Treaty of Maastricht in 1993 but we never hear talk of an "EU trade mark" or a "registered European Union design" so I had a look at the Competitiveness Council's proposal. Sure enough, I found the following words "In view of the entry into force on 1 December 2009 of the Lisbon Treaty, the...