On 30 November 2012, the European Commission launched a public consultation to assess the efficiency and accessibility of civil enforcement measures for intellectual property (IP) rights in the EU Member States.  Notably, the survey asks a number of questions on the use of injunctions and other enforcement measures for “frivolous and/or anticompetitive purposes.”

As part of the European Commission’s continued policy-making efforts to improve the EU’s legal framework for IP enforcement, this survey aims to collect information that will help the Commission to understand the IP protection landscape and to identify appropriate ‘complementary work streams’.  The questionnaire asks for input on issues including the costs and duration of IP infringement proceedings, the use of alternative dispute resolution mechanisms, the ability to obtain information on alleged infringers, measures against indirect infringers and damages.

In addition, the survey also seeks information on the extent to which IP enforcement measures, such as injunctions, are used for anticompetitive purposes, stating that “[i]n the course of the public consultation process on Directive 2004/48/EC, some stakeholders pointed out that the possibility to award injunctions [and other measures] is at times used in an unjustified manner […] to e.g. block their competitors (i.e. “offensive” use of IP rights), leading to a use of the enforcement system that can be inappropriate.”  In this context, the Commission asks for input regarding:

  • the percentage of cases in which the respondent considers that a party used IP litigation for anticompetitive purposes and the impact of such anticompetitive IP litigation on the respondent’s business;
  • national provisions and sanctions against such anticompetitive IP litigation; and
  • information concerning the authorities responsible for sanctioning such anticompetitive behavior.

While the survey is open to all interested stakeholders, the Commission is particularly seeking input from entities that have been plaintiffs and/or defendants in civil proceedings relating to IP infringements.  The deadline for responses to the Commission’s survey is 30 March 2013.

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Photo of Miranda Cole Miranda Cole

Miranda Cole is a partner based in the firm’s Brussels office.  She practices competition and communications law and policy, and has more than 15 years of experience in the field.  Ms. Cole’s competition law expertise encompasses merger control, actions under Articles 101 and…

Miranda Cole is a partner based in the firm’s Brussels office.  She practices competition and communications law and policy, and has more than 15 years of experience in the field.  Ms. Cole’s competition law expertise encompasses merger control, actions under Articles 101 and 102 TFEU, advisory work and actions before the European courts in Luxembourg.

She has particular expertise in advising companies active in the technology and communications sectors in complex and strategic regulatory and policy matters, with particular expertise regarding the impact of evolving regulatory frameworks on new technologies and services.  In the communications sector she has extensive experience advising in connection with all aspects of European and international regulation, policy and competition law, and counselling in connection with the impact of regulation on transactions.