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CJEU struggling to cope with growth in complex IP cases

Disputes heard by the European court jump 60 per cent in a year

23 June 2015

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By John van der Luit-Drummond, Deputy Editor, Solicitors Journal (@JvdLD)

An increased determination by businesses to protect their intellectual property (IP) has led to a sharp rise in the number of cases heard by the European Court of Justice (CJEU) last year, according to a UK law firm.

Figures provided by RPC show that the number of IP cases heard by Europe's highest court jumped from 43 in 2013 to 69 in 2014.

Lawyers at the firm say the increase in disputes is partly driven by the continued development of new, disruptive technologies that many established businesses fear threaten the value of the content or trademarks they own, and even constitute the theft of their IP.

Jeremy Drew, a partner and head of the IP and technology group at RPC, explained: "E-commerce businesses and apps are evolving at such a pace that UK and other national laws just cannot keep up. If national courts can't definitively answer whether a new online business is illegally using someone else's IP then the cases have to be referred up to the [CJEU].

"Obviously that is an expensive process so it shows how much value businesses now put in their IP that they will fund so many cases all the way to Europe," he continued.

"The irony is that the [CJEU] can take so long to decide a case that once there is a final judgment the commercial landscape has changed completely and the [CJEU] ruling can either be redundant or come too late to change the facts on the ground."

Drew added that delays in getting cases heard at the CJEU can be a significant problem as the court is being asked to make rulings on some of the most significant commercial cases of modern times.

Recent examples of landmark IP cases include the UK retailer M&S, which was sued by Interflora, the flower delivery network, for trademark infringement after M&S bid for the use of trademarked 'Interflora' as a 'keyword' for its website.

In another high-profile dispute, fashion house Louis Vuitton claimed Google had infringed upon its trade marks by selling LVMH trademarked brands names through its Adwords service.

Ben Mark, a legal director at RPC, said that more complex cases were being brought as businesses seek to protect their IP across borders.

Moreover, an increase in cross-border trade means there is a greater chance of businesses coming into contact with competitors with similar trade marks as they expand into new markets.

"Traditionally businesses would focus more on litigation to protect their IP in their home countries," said Mark. "But with the increase in cross-border transactions, due to the rise of e-commerce, businesses are becoming increasingly protective over their brand, even in markets where they don't currently have a substantial presence."

Mark added that the two big business trends of the last two decades - globalisation and digitisation - are driving the flow of cases to the CJEU, which unfortunately cannot cope with the number of complex cases coming through its doors.

"The EU wants to help create a better playing field for content and digital businesses - putting proper resources into the [CJEU], to cut any delays, would be one simple step towards achieving that," continued Mark.

First published in sister publication Solicitors Journal.




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