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Draft evaluation and review of the IPR enforcement directive – Speed, quality and access to enforcement

Judges specialised in IPR matters would provide an added value compared to legal action dealt with in non-specialised courts (shorter length of proceedings, more fir-for-purpose proceedings and better quality judgments). A first option to address this issue is promoting and incentivising of the specialisation of national judges in matters of infringement and validity of IPR through a non-legislative initiative.

A significantly more far reaching option would be mandate that infringements of IPRs are dealt with by specialised members of the judiciary, providing training and ensuring capacity to respond effectively. This option touches upon the judicial organisation in the Member States and therefore needs to be carefully assessed. It would likely be very controversial.

A number of Member States already have positive experience with the specialisation or concentration of the judiciary in IPR matters. Such specialisation or concentration exists in Austria, Belgium, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, the Netherlands, Portugal, Romania, Sweden, Slovakia and the UK. It is important to note, however, that the degree of specialisation varies, that is does not necessarily cover all court levels and that not all IP types are covered by all. Other Member States, such as Spain, currently discuss the introduction of a specialisation of the judiciary in IPR matters.

According to stakeholders, speed and quality of decisions could be improved if the parties could start to prepare their case effectively upstream of the trial. To address this, the Directive could ensure that access to information and evidence can be sought before the commencement of proceedings on the merits of the case.

Small right holders in particular have raised the lack of an efficient means to ensure access to justice. This would be most effectively addressed by introducing a mandatory legal standing for collective rights management and professional defense bodies in all MS. Currently this possibility is subject to permission by national law.

Except for Cyprus and Finland, Member States permit collective rights-management bodies to take legal action, for infringement of their own rights or on behalf of the IPR holder, for infringements of copyrights and related rights, Only half of the Member States however do permit professional defense bodies to take legal action, for infringement of their own rights or on behalf of the IPR holder, for infringements of industrial property rights.