Understanding Grace Periods in EU Trademark Law
Explore the concept of grace periods in EU trademark law, including the principles of proportionality, injunctions, and compensation. Learn about temporary continuation of infringements, the connection between injunctions and intellectual property rights, and the importance of proportionality in legal remedies.
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Presentation Transcript
Grace Periods in EU Trademark law Peter Teunissen Radboud University
Introduction Proportionality as a principle of EU Trademark law Substantive law (see e.g. ECJ Kenzo) Remedial law (see e.g. ECJ L Or al/eBay; Article 3(2) IPRED) Generally understood as a balancing act Rightsand interest of the TM holder (Article 17(2) and 47 CFR) Interestsof competitors and consumers (e.g. Article 11 and 16 CFR)
Injunctions in EU trademark law Gradual shift towards a European approach Articles 9 and 11 IPRED in conjunction with Article 3(2) IPRED (effective, proportionate and dissuasive) General rule: valid right + infringement = injunction (ECJ Nokia/W rdell) Effectiveness and dissuasiveness infringement must be terminated immediately on threat of penalty But also proportionality remedy must be commensurate with the infringement of the subjective right; see, inter alia, ECJ Von Colson)
Proportionality and injunctions Threshold for a limitation of injunctive relief should be high ( hardship clause ) Harmful effects grossly outweigh the interests served by the injunction Case-by-case assessment Legal consequences Usually a modified injunction (i.e. partial denial) Carve-out or grace period
Grace periods Temporary continuation of infringement(s) Sale of existing stock (sell-off period) Removal of infringing goods (disposal period) Modification of infringing goods (conversion period) Consequences for claims e.g. removal, destruction, recall?
Compensation Connection between injunction and right to IP (ECHR Safarov) TM holder must be compensated for loss of injunctive power Damages in lieu (Article 12 IPRED) Regular damages (Article 13 IPRED)
