Introduction

Intellectual property rights (IPR) are an important part of a company's value and international competitiveness.  Companies must take specific steps to protect their IPR in the European Union (EU) because United States trademark, design and patent rights do not provide protection outside of US territory.  This IPR toolkit is mean to help businesses understand their IPR in the EU's 27 Member States and take measures to protect those rights.

The World Intellectual Property Organization (WIPO) divides intellectual property into two categories:  (1) copyright, which includes literary and artistic works such as novels, poems, plays, films, musical works, drawings, paintings, photographs, sculptures, and architectural designs and (2) industrial property, which includes inventions (patent protection), trademarks, industrial designs, and geographic indications (GI) of source.  This toolkit discusses both types of IPR and also the why and how to obtain protection at EU trade fairs.  The most important point to take away from this toolkit is that preventing IPR infringement in the first place is better than trying to remedy an infringement that already occurred.

The Intellectual Property Rights Environment in the European Union

The EU considers intellectual property protection as a fundamental right, noting that IPR shall be protected in the Charter of Fundamental Rights.  As major trading partners, the EU and the US work together to expand IPR.  The EU, which consists of twenty-seven Member States (EU-27) and is the world’s largest economy, presents many business opportunities.  In 2006, US exports of goods and services to the EU’s twenty-five Member States (prior to Romania and Bulgaria joining in 2007) were valued at $213 billion, while US imports from the EU-27 were valued at $330 billion. Companies doing business in the EU, however, must take pro-active steps to protect their intellectual property rights.

The 27 Member States of the EU are: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

General IPR Environment in the EU

As mentioned, the US and the EU continue to work together to enhance and enforce international IPR and facilitate international trade.  In June 2006, the EU adopted the Action Strategy for the Enforcement of Intellectual Property Rights at the US-EU Summit in Brussels.  The strategy establishes cooperation in customs and border controls, joint actions in third countries, coordination on enforcement issues in a multilateral forum, and public-private partnerships on enforcement. 

The United States and the EU have disagreed on some areas of IP enforcement including GIs, enforcing World Trade Organization (WTO) panel reports on intellectual property, and when to grant intellectual property rights (although the United States uses the “first to invent” system for patents, the European Union follows the “first to file” approach).  The United States Special 301 Report Watch List identifies those countries where there is not sufficient IPR protection.  Some EU Member States are on this list including Hungary, Italy, Lithuania, Poland, and Romania.

Member States do, however, work to provide adequate IPR to companies with Germany and France leading the EU-27 in addressing counterfeiting issues.    For example, Germany’s Economics Ministry and Professional Federals will produce an IPR guide to advise Small and Medium Sized Enterprises (SMEs).  In France, companies may request what is known as a pre-diagnosis under the IP Genesis scheme to allow companies to evaluate their industrial portfolios.

The challenges that the EU faces when addressing IPR reflect its size, rapid growth, and diverse Member State economies.  As the EU harmonizes IPR and adopts competent and consistent enforcement mechanisms throughout Member States, it provides the market with clarity and international businesses with the necessary tools to protect their IPR.  As long as businesses take steps to ensure that their IPR are protected, the EU market can be both dynamic and profitable.

• Taking a Proactive Approach in Enforcing Your Company’s IPR

As international trade continues to develop, attempts at copying others’ works become more sophisticated and businesses must proactively protect their IPR.  A recent study commissioned by the EU on the effects of counterfeiting on SMEs confirmed that IP infringement in the marketplace could be a problem. 

If businesses, however, take steps to protect their IPR, they can reduce chances of infringement.  Companies can help avoid or confront IPR problems by understanding their IPR and the forms of protection available.  Ultimately, it is the company’s responsibility to ensure that its IPR are properly protected.  

Legal Authority and Background

There are three areas of law that are relevant to IPR in the European Union: national, EU, and international laws. 

National laws involve the laws of an individual country.  In the EU, there are twenty-seven EU Member States.  Each EU Member State has national authorities that address IPR laws in its country.  Although, in some cases, it is the EU as a whole that has the authority to regulate IPR, national offices in specific Member States often provide registration services and information to protect IPR.  If your company only does business in a limited number of Member States, it may be wise to contact the Member State’s national office where your company conducts most of its business to learn about and enforce its rights at the national level.

EU lawis the “supranational law” of the European Union, which comprises twenty-seven Member States.  EU law works in conjunction with Member State laws and is directly applicable in Member States.  If there is a conflict between EU law and a Member State’s law, EU law often supersedes the Member State’s national law, particularly with regard to economic and social policies.  The EU is not, however, a federal government, nor is it an intergovernmental organization.  The EU is a supranational institution that is based on treaties concluded by Member States. 

In addition to EU treaties, the EU also adopts Regulations and Directives.  Regulations are self-executing and do not require the Member States to implement any additional measures.  However, they are automatically binding on Member States and leave less flexibility. Directives allow Member States to determine the means of attaining that result as they normally permit some discretion as to the exact rules to be adopted. 

International treaties that are relevant to IP protection are effectively those that are maintained by the World Intellectual Property Organization (WIPO), which aims to promote the effective use and protection of IP worldwide.  The WIPO Convention established WIPO in 1967 with a mandate from its signatories to promote the protection of IP throughout the world through cooperation among countries and in collaboration with other international organizations.  WIPO headquarters are in Geneva, Switzerland.  Many international treaties that address IPR have been concluded under WIPO and will be discussed in further detail under the relevant sections.