Wednesday, August 2, 2017

Some Recent Articles, Posts on Damages Multipliers and Attorneys' Fees in the E.U.

In July 2016, the CJEU handed down its judgment in UnitedVideo Properties, Inc v Telenet NV, C-57/15, on the recovery of attorneys' and advisors' fees in IP cases (see my blog post here), and in January of this year it handed down its judgment in Stowarzyszenie ‘Oławska Telewizja Kablowa’ v. StowarzyszenieFilmowców Polskich, Case C-367/15, on whether E.U. member states can award double damages for copyright infringement (see my blog post here).  Here are some recent articles and blog posts:

1.  Thibault Gisclard has published an article titled La nature des "dommages et intérêts" sanctionnant la contrefaçon:  À propos de l'arrêt de la CJEU, 25 janv. 2017, aff. C-367/15, Stowarzyszenie Olawska Telewizja Kablowa c/ Stowarzyszenie Filmowców Polskich ("The nature of "damages and interest" for infringement:  Regarding the Judgment of the CJEU, Jan. 25, Case No. C-367/15," etc.) in the May 2017 issue of Propriété Industrielle. (pp. 23-27).  Here is the abstract (my translation):
Directive 2004/48/CE of April 29, 2004 permits an award of lump-sum damages unconnected with just the harm effectively suffered and proven by the victim of the infringement.  The Court of Justice of the European Union indicates in its judgment of January 25, 2017 that such an award may correspond to double the royalty based on a hypothetical license, which does not consequently constitute punitive damages and interest.  The court, however, does not specify if the latter are compatible with the Directive.  In French law, if the laws of 2007 and 2014 permit an extension of the notion of damages and interest beyond injury in the tort-law sense, the award of a fictive license has more of a quasicontractual nature, and the disgorgement of the gain realized by the infringer, which is no way punitive, is just a form of restitution of the fruits of the illicit exploitation of the intellectual property.
2.  Magdalena Kogut-Czarkwoska and Dr. Birgit Clark have published an article titled "Copyright and Punishment":  CJEU Rules that the IP Enforcement Directive Does Not Prevent "Lump Sum" Damages in IP Cases, 39 E.I.P.R. 315 (2017).  Here is the abstract:
The Court of Justice of the EU (CJEU) has held that art.13 of the IP Enforcement Directive 2004/48 (the Directive) does not preclude an EU Member State from enacting national legislation which offers a method of establishing damages as a "lump sum" equivalent to double the hypothetical royalty rate. The decision confirms that the Directive merely aims to introduce "minimum" standard of protection, but does not prevent the Member States from introducing a higher level of protection: Stowarzyszenie Oławska Telewizja Kablowa v Stowarzyszenie Filmowców Polskich (C-367/15).
3.  Peter R. Slowinski has published an article titled Case Note on: "United Video Properties" , 48 IIC 373 (2017).   Mr. Slowinski argues that the CJEU has left open "a number of important practical questions," among them how to determine what "reasonable" costs are, given that "[a]s of today, all information on legal fees in Europe is based on more or less structured surveys, which must be categorized as anecdotal."
4.  Jan-Diederick Linemans has published two posts on the Kluwer Patent Blog, one titled First Belgian Ruling on Costs in Patent Proceedings Post United Video Properties/Telnet (May 4, 2017), and Recovering Lawyers' Fees in Belgium:  Antwerp Court Beats Mons Court to First Substantive Ruling (May 24, 2017)According to Mr. Lindemans, in two recent cases Belgian courts have awarded fees for technical advisors, on the ground that "the 'direct and close link' required by the CJEU had . . . been proven."  In the case before the Antwerp court, however, the court concluded that "an individual can only invoke his rights under the directive against a Member state . . .  and not against another individual," although "the prevailing party could have a claim . . . against the Belgian government for not having implemented article 14 of the Enforcement Directive correctly or in a timely fashion."

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