© The Author (2006). Published by Oxford University Press. All rights reserved.
The implementation in England and Wales of the European Enforcement Directive
Legal context. The background to the EU Enforcement Directive (2004) and its implementation in England and Wales by legislative and procedural changes taking effect in April 2006.
Key points. Although much of the Directive required no implementation, there are doubts as to whether the implementing provisions go far enough, particularly in respect of the rights of action of representative bodies. Many of the provisions which have been made are cosmetic, but there are some significant changes. New evidential presumptions have been introduced in actions in respect of publication right and rights in performances (although the latter may not go far enough). Defendants may now be required to supply interim guarantees instead of submitting to interim injunctions. Remedies in the design field have been clarified. By contrast, the rules as to damages in the IP field have been made more obscure by the implementation of Article 13 of the Directive. Finally, the courts may now make orders for the dissemination of decisions although quite what form these will take remains to be seen.
Practical significance. The changes are procedural not substantive, but they create important new opportunities for claimants and new threats for defendants. Any parties and potential parties to IP litigation in England and Wales therefore need to be aware of them.
*Hogarth Chambers