European Trade Mark Law, Quo Vadis?
| DOI | 10.1093/jiplp/jpt039 |
| Pages | 337-338 |
| Date | 01 May 2013 |
| Year | 2013 |
| Published By | Oxford University Press |
Guest Editorial
European trade mark law, Quo Vadis?
Willem Leppink*
On 23 January 2013 the UK Prime Minister David
Cameron delivered a speech about the future of Europe
and Britain’s place in that future. Cameron mentioned
that the first purpose of the European Union – to
secure peace on the European continent – has been
achieved, but that the main, overriding purpose of the
EU is not to win peace but to secure prosperity.
In addition to his concerns about the Euro,
Cameron said that there is a crisis in European com-
petitiveness and a gap between the EU and its citizens
that is only growing. He advocated that the single
market in the EU is crucial, but that we cannot har-
monize everything. In Cameron’s view the EU has gone
too far and some powers should flow back to the indi-
vidual member states. Cameron used the example that
there is no need for the working hours of British
doctors to be set in Brussels. Cameron called for a flex-
ible, adaptable and open European Union and his
speech has sparked a fierce debate in the various coun-
tries of the EU. Former Belgian Prime Minister, Guy
Verhofstadt, has for example warned against trying to
“hold the EU to ransom”.
The debate is interesting because there is probably no
right or wrong. Having grown up on the German-Dutch
border and having seen the Customs checkpoints and in
their slipstream the actual borders disappear, I am
perhaps prejudiced about the advantages of the EU. In
that border area many national differences have really
vanished, of course also helped by the globalization of
our society. Clear differences in food, electronics,
fashion and even hairstyle on both sides of the national
boundaries are simply gone.
A single market without borders requires honest
competition and thus a level playing field. It will be un-
acceptable for a company in one EU country who has to
adhere to strict environmental standards, if it has to
accept the import of products that have been produced
by a competitor in another EU country that is not so
strict in applying its environmental standards. However,
the question remains, to what extent and in how much
detail should the EU harmonize the legislation of the
EU member states?
Except for maybe competition and customs law,
intellectual property law, and in particular trade mark
law, is one of the most Europeanized areas of law. Espe-
cially after the coming into force of the European
Trade Mark Harmonization Directive, the Anti-Piracy
Regulation, allowing pan-European Customs border
detention orders, and the Community Trade Mark
Regulation (CTMR), creating the single European
trade mark, most practitioners can now advise on most
trade mark issues everywhere in Europe. Thus a single
market for trade mark practitioners has been created.
The Europeanization of trade mark law has not led
to much concern amongst European citizens about
giving up national sovereignty, except maybe for the
discussion around the official languages of OHIM.
Most trade mark owners would even prefer further
harmonization. Different opposition periods in the EU
are not symbols of national culture and it is not to be
expected that further harmonization there would lead
to much resistance.
In my view there are two areas in trade marks where
the EU and its institutions should be concerned about
what Cameron calls “a lack of democratic accountability
and consent”: (1) The growing role of the Court of
Justice of the EU (CJEU) in the creation of trade mark
law; and (2) the inability of the EU to distinguish in its
legislation between counterfeits and other infringements.
Of all the EU institutions, the CJEU is the one with
the most influence in European trade mark law. The
CJEU goes beyond the point of giving interpretations
of the legislation passed by the European legislator. The
CJEU is not the only institution to be held responsible
for that, as the European legislator often fails – prob-
ably as a result of too many compromises – to deliver
clear and understandable legislation. The CJEU is then
forced to take the decision that the legislator has failed
to take, which is not an easy task for a court that
mainly consists of well-respected experts on European
and competition law and not with a traditional back-
ground in trade mark law.
The outcome of, for example, the Opel/Autec case,
allowing a third party to put the OPEL logo on its
* Partner Ploum Lodder Princen, Rotterdam. Email: w.leppink@ploum.nl.
Journal of Intellectual Property Law & Practice, 2013, Vol. 8, No. 5 GUEST EDITORIAL 337
#The Author(s) (2013). Published by Oxford University Press. All rights reserved. doi:10.1093/jiplp/jpt039
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