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Implementation of the EU Enforcement Directive in the Baltic Countries / Concluding remarks
Implementation of the EU Enforcement Directive in the Baltic Countries / Concluding remarks
Contents
Chapter
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2–16
Titelei/Inhaltsverzeichnis
2–16
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17–20
§ 1 Abbreviations
17–20
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21–28
§ 2 Introduction
21–28
21–25
A. Subject-matter and objectives of the research
21–25
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25–28
B. Structure of this study
25–28
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29–66
§ 3 Protection of IP rights in the Baltic countries: retrospective observations and the current infrastructure
29–66
29–31
A. Specificity of the geopolitical situation of the Baltic countries: the general context
29–31
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31–49
B. Historical overview of the protection of IP rights in the Baltic countries
31–49
31–36
I. Before World War II (1918 – 1940): the origins of modern national IP legislation
31–36
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1. Industrial property legislation
Details
2. Copyright legislation
Details
36–39
II. The Soviet occupation (1940 – 1990/1991): the strained existence of IP rights
36–39
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1. IP as a part of Soviet civil law
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2. Aspects of enforcement of IP rights under the Soviet regulation
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39–46
III. The period of substantial changes of IP rights protection (1990/1991 – 1994)
39–46
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1. Adoption of the new national IP legislation
Details
2. Adherence to the international treaties on IP protection
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46–48
IV. Substantial reforms in the field of enforcement of IP rights regarding the implementation of acquis communautaire
46–48
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48–49
V. Concluding remarks
48–49
Details
49–66
C. Overview of the current national regulatory and institutional framework for the enforcement of IP rights
49–66
49–51
I. Adoption of national IP legislation: some procedural aspects
49–51
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51–54
II. Competence and functions of the main national IP institutions
51–54
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1. The Ministries of Culture: the Copyright Divisions and Boards
Details
2. The collective administration societies
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3. The trademark and patent offices
Details
54–57
III. The role of the government institutions responsible for IP rights enforcement
54–57
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1. The police authorities: a good start in IP rights infringement cases is crucial
Details
2. Customs authorities: ensuring effective measures at the borders
Details
57–63
IV. The national judicial systems in view of IP rights enforcement
57–63
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1. Competence to hear IP rights infringement cases and jurisdiction
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a) General structure of the court systems
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b) Role of the national Supreme Courts
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2. Establishment of specialized courts: a solution for the Baltic countries?
Details
3. Common judiciary in the framework of community rights: Baltic perspective
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63–65
V. IP practitioners and their role in IP enforcement-related processes: professionalism as the key factor
63–65
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1. Legal representation
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2. Patent and trademark attorneys
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65–66
VI. Concluding remarks
65–66
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67–82
§ 4 Considerations of the relevant social and economic factors which are important to the implementation of the Enforcement Directive
67–82
67–71
A. General considerations
67–71
67–69
I. Social changes in the Baltic countries in view of the accession into the European Union
67–69
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69–71
II. IP piracy in the Baltics: prevailing tendencies and impact on the national IP rights enforcement legislation
69–71
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71–82
B. Aspects of the Baltic IP research, innovation and industry
71–82
71–72
I. General remarks
71–72
Details
72–74
II. IP teaching: a role of the national educational institutions and a level of the scientific research
72–74
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74–77
III. Local research and innovation
74–77
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1. Research and development areas
Details
2. Foreign and local investments in local IP industries
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77–80
IV. Factors promoting the local research and innovation
77–80
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1. Promoting activities in the Baltic universities
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2. IP strategy in the local business sector
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3. Level of the national governments’ regulation and their support in the field of research and development
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80–82
V. Concluding remarks
80–82
Details
83–226
§ 5 Aspects of enforcement of IP rights in the Baltic countries in view of the implementation of the EU Enforcement Directive
83–226
83–108
A. EU Enforcement Directive: idea, objectives and scope of application
83–108
83–93
I. Brief review on the adoption of the Directive
83–93
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1. Commission’s Proposal for a Draft Enforcement Directive: between support and critique
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a) Supportive positions
Details
b) Criticised aspects
Details
c) Adopted EU Enforcement Directive: tension remained?
Details
2. Relation between the Enforcement Directive, other international standards on IP enforcement and EU directives
Details
a) Part III of TRIPS Agreement: was the Enforcement Directive necessary?
Details
(1) Community’s competence to legislate on enforcement of IP rights
Details
(2) Necessity to adopt a directive on enforcement of IP rights
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b) Enforcement Directive as the first extensive horizontal instrument on enforcement of the substantive IP rights
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(1) Prior EU-wide provisions on enforcement of IP rights
Details
(2) Character of the provisions of the Enforcement Directive
Details
93–107
II. Review of the catalogue of enforcement measures, procedures and remedies under the Enforcement Directive: “grandfather” provisions and novelties
93–107
Details
1. Substantive provisions under the Directive
Details
a) Right of information (Article 8)
Details
b) Corrective measures (Article 10)
Details
c) Injunction (Article 11)
Details
d) Alternative measures (Article 12)
Details
e) Damages (Article 13)
Details
f) Publication of judicial decisions (Article 15)
Details
2. Procedural provisions under the Directive
Details
a) Evidence (Article 6)
Details
b) Measures for preserving evidence (Article 7)
Details
c) Provisional and precautionary measures (Article 9)
Details
d) Legal costs (Article 14)
Details
107–108
III. Concluding remarks
107–108
Details
108–119
B. Implementing legislation of the Baltic countries
108–119
108–118
I. Legislative (formal) implementation 108 1. Prior-to-implementation provisions on IP enforcement, duration of the implementation and the implementing provisions
108–118
Details
a) Prior-to-implementation national IP enforcement provisions: key aspects
Details
(1) Copyright legislation
Details
(2) Industrial property legislation
Details
b) Duration of the implementation of the Directive
Details
c) Adoption of the implementing amendments on IP enforcement
Details
(1) General remarks
Details
(2) Copyright legislation
Details
(3) Industrial property legislation
Details
118–119
II. Concluding remarks
118–119
Details
119–150
C. General provisions of the Enforcement Directive in view of the implementing Baltic legislation and other Baltic national laws
119–150
119–126
I. Interpretation of the “subject-matter” under Article 1 of the Directive
119–126
Details
1. The Commission’s position
Details
2. The protected “subject-matter” under the Baltic national legislation
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a) The definition of “IP rights” under the Baltic legislative acts
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(1) IP right holders and their economic rights
Details
(2) Moral rights
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b) “Grey areas” under the national legislation
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(1) Non-property rights, firm names, commercial (industrial) secrets
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(2) Civil enforcement remedies in cases of infringements of “grey area” rights
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126–134
II. The scope of the application of the Enforcement Directive
126–134
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1. Covered and excluded legal areas under Article 2 of the Directive
Details
a) Areas to which the Directive has no prejudice
Details
b) Applicability of the Directive to any infringement of IP rights
Details
2. The term “commercial scale” (“commercial purposes”) under the Directive
Details
a) Embodiment of the term in the Draft Enforcement Directive
Details
b) Relevance of the definition of “commercial scale” in IP enforcement practice
Details
c) Judicial interpretation of the term “commercial purposes”: the Lithuanian court practice
Details
(1) Before the implementation of the Directive
Details
(2) Implementing amendments: finally solving the issue of the “commercial purposes”?
Details
134–137
III. The principle of “Fair and Equitable Measures, Procedures and Remedies” under Article 3 of the Directive
134–137
Details
1. Essence of the principle
Details
2. Embodiment of the principal in the Baltic legislation and practice
Details
137–142
IV. Presumption of authorship and ownership
137–142
Details
1. Debatable aspects of the “presumption” provision set out in Article 5 of the Directive
Details
2. Authorship presumption and reversal of burden of proof under the Baltic legislation and practice
Details
a) Authorship presumption
Details
b) Reversal of burden of proof under the national patent legislation
Details
142–148
V. Legal standing in civil proceedings (locus standi)
142–148
Details
1. List of persons having a right to assert enforcement measures and remedies under Article 4 of the Directive
Details
2. Locus standi under the Baltic legislation
Details
a) IP right holders
Details
b) Licensees
Details
(1) Before the implementation of the Directive
Details
(2) The implementing provisions regarding locus standi
Details
c) Rights-management collective societies and professional defence bodies
Details
d) Foreign natural and legal persons
Details
148–150
VI. Concluding remarks
148–150
Details
150–174
D. Preserving evidence in IP infringement cases and right of information under the national legislation and court practice in view of the implementation of the Enforcement Directive
150–174
150–168
I. Evidence and measures to preserve evidence in IP rights infringement cases in view of Articles 6 and 7 of the Enforcement Directive
150–168
Details
1. General remarks
Details
2. National measures for preserving evidence: before and after the implementation of the Enforcement Directive
Details
a) Prior-to-implementation regulation of measures preserving evidence
Details
b) Implementing amendments on measures preserving evidence
Details
3. Lithuanian practice on civil (ex parte) searches
Details
a) General aspects
Details
b) Requirements for civil (ex parte) searches requests
Details
(1) Substantiated requests by interested parties
Details
(2) Presentation of “reasonably available evidence” by the requesting party
Details
(3) Most frequent evidence in civil search cases in Lithuania
Details
(4) Application of measures preserving evidence on ex parte basis
Details
(5) Sufficiency of evidence and application of “samples” provision
Details
c) Enforcing court rulings on civil searches
Details
d) Requirement to submit a civil claim
Details
e) Protection of interests of the opposing party (alleged infringers)
Details
168–172
II. Right of information under the national legislation in view of Article 8 of the Directive
168–172
Details
1. Scope and content of requested information
Details
2. Providers of requested information
Details
172–174
III. Concluding remarks
172–174
Details
174–184
E. Provisional measures and injunctions under the implementing national legislation and court practice
174–184
174–183
I. Provisional measures under the national legislation in view of Article 9 of the Enforcement Directive
174–183
Details
1. Application of provisional measures as procedural civil remedies
Details
a) Objectives and nature
Details
b) Requirements for application of interlocutory injunctions
Details
2. Permanent injunctions under the national legislation in view of Article 11 of the Directive
Details
a) Injunctions against the continuation of IP infringements
Details
b) Possibilities of preventive claims
Details
3. Injunctions against intermediaries
Details
4. Assurance of compliance with permanent injunctions
Details
183–184
II. Concluding remarks
183–184
Details
184–213
F. Damages, legal costs and other enforcement measures
184–213
184–203
I. Adjudication of damages in IP rights infringement cases in view of Article 13 of the Directive
184–203
Details
1. Actual damages and alternative methods to calculate damages: dilemma in the national IP infringement cases
Details
a) General remarks regarding compensation of damages
Details
b) Actual damages (losses)
Details
(1) Civil legal liability conditions
Details
(2) Reimbursement of direct material damages
Details
(3) Loss of profit
Details
(4) An infringer’s gained profit; unjustified enrichment
Details
(5) Pre-established damages
Details
c) Alternative methods to compute damages: is fair and adequate estimation possible?
Details
(1) General grounds for alternative methods to compensate damages
Details
(2) Compensation instead of actual damages (losses)
Details
(3) License analogy method
Details
d) Moral prejudice (non-pecuniary damages)
Details
203–205
II. Legal costs as an important procedural factor in view of Article 14 of the Directive
203–205
Details
1. National procedural rules on legal costs
Details
2. Practical aspects regarding covering of legal costs
Details
205–210
III. Application of corrective and alternative measures
205–210
Details
1. Corrective measures in view of Article 10 of the Directive
Details
2. Alternative measures in view of Article 12 of the Directive
Details
210–211
IV. Publication of judicial decisions in view of Article 15 of the Directive
210–211
Details
211–213
V. Concluding remarks
211–213
Details
213–226
G. Other national IP enforcement measures which do not fall under the scope of the Directive
213–226
213–222
I. Other sanctions for IP infringements in view of Article 16 of the Directive
213–222
Details
1. Administrative and criminal liability and sanctions under the Baltic legislation
Details
a) General overview of the national provisions
Details
b) Relevant aspects of administrative and criminal liability
Details
c) Adjudication of civil damages in administrative and criminal cases
Details
222–225
II. Border measures under the EC Regulation 1383/2003
222–225
Details
1. General remarks
Details
2. Border measures and civil remedies as implemented under the Enforcement Directive
Details
225–226
III. Concluding remarks
225–226
Details
227–230
§ 6 Conclusions and observations
227–230
227–229
A. Implementation of the Enforcement Directive in the Baltic countries: outcomes
227–229
Details
229–230
B. Further strengthening IP rights enforcement: incentives to innovate and create in the Baltics?
229–230
Details
231–240
Bibliography
231–240
Details
241–244
§ 7 Annex I: International, EU and National Legislation
241–244
241–241
A. International Treaties
241–241
Details
241–242
B. European Union Legislation and Preparatory Acts
241–242
Details
242–244
C. National Legislation
242–244
242–243
I. Lithuania
242–243
Details
243–244
II. Latvia
243–244
Details
244–244
III. Estonia
244–244
Details
245–248
§ 8 Annex II: Cases
245–248
Details
249–256
§ 9 Summary (in German)
249–256
Details
257–262
§ 10 Index
257–262
Details
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Implementation of the EU Enforcement Directive in the Baltic Countries , page 211 - 213
Concluding remarks
Autoren
Kristina Janusauskaite
DOI
doi.org/10.5771/9783845226934-211
ISBN print: 978-3-8329-5784-1
ISBN online: 978-3-8452-2693-4
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