IP Case Law Conference: Judicial cooperation and EU copyright challenges

Globalisation and judicial cooperation were on the agenda during the morning sessions at the 5^th IP Case Law Conference, which is taking place at the EUIPO’s headquarters in Alicante.

While yesterday’s sessions included an element of reflection, today’s focused on how case law can develop in the future.

Bridging borders

Eun-Joo Min began by providing an overview of WIPO’s Judicial Institute, of which he is director. The forum was set up for judges worldwide to discuss and learn from each other.

Around 3,000 judges are part of the network.

Min discussed how in recent years there has been a proliferation of cases heard across multiple jurisdictions, some of which have come to similar conclusions.

She referenced the ‘red sole’ trademark case involving fashion company Christian Louboutin and a standard-essential patent (SEP) dispute between Ericsson and Apple.

The Louboutin case was heard in courts in Brazil, China, France and the US – which all reached similar conclusions, namely that Louboutin’s trademark for the red sole of its shoes was valid.

“With globalisation brings harmonisation of legal issues,” Min said, adding that the decisions were an example of how courts can learn from one another.

Turning to the SEP dispute, Min noted that Ericsson and Apple’s battle was being fought across jurisdictions, including in Colombia and Brazil.

“Colombia moved first by ordering a preliminary injunction in favour of Ericsson [in 2022], Brazil then followed suit with a similar injunction and the parties then settled their dispute,” Min said.

“This illustrates how a decision of one national court can have an impact in other territories,” said Min, adding that the Judicial Institute could help shape future similar scenarios.

“We are not trying to encourage full harmonisation as such, but more dialogue across borders,” she explained.

Let’s talk

Increased dialogue was also on the wish list of another speaker during this morning’s session.

Myrtha Hurtado Rivas, general counsel for brands and anti-counterfeits at Nestlé in Switzerland, outlined a “corporate wish list” for how IP legislation should develop.

“We need to be able to think about how we can accelerate IP proceedings,” she said. “This [slow development of IP laws] is not just something that impacts emerging markets. We also face this problem in developed countries.

“It goes without saying that we cannot develop laws as quickly as technology develops, but collaboration across sectors to give more certainty to practitioners will provide more certainty.”

Copyright conundrum

Attention then turned to copyright, with panellists being asked to consider how copyright law has developed, its interplay with trademark law and whether an EU-wide copyright regulation is needed.

Eleonora Rosati, a professor of IP law at Stockholm University, said it’s undeniable that copyright law should be harmonised but that it is unclear how this could work in practice.

“The Court of Justice of the EU has on occasion criticised or declared unlawful how member states have transposed elements of the Copyright Directive,” she noted.

EU directives do not require adherence to the letter of the law. Member states are instead allowed to take account of the directive’s aims and adopt them into their national frameworks as they see fit.

The Copyright Directive entered into force in June 2019, giving member states until June 7 2021 to implement it domestically.

Rosati said a directive, which leaves room for manoeuvre nationally, was the wrong method for introducing copyright laws and that a regulation might have created tighter rules.

The EUIPO’s 5th IP Case Law Conference concludes today, April 30.