A Summary of the EU Enforcement Directive

According to a summary article by Michael Veddern of the University of Muenster, the European I/P Enforcement Directive 2004/48/EC1 distinguishes between four main categories of civil measures which can be sought by the beneficiaries in case of IP-infringements:

1. measures for protecting evidence of IP infringements [Art. 6, 7],
2. the information right about the source and distribution channels of infringing goods and services [Art. 8],
3. provisional and precautionary measures for the prevention of infringements and for the protection of claims for damages [Art. 9], and
4. compensation and corrective measures following a judicially determined IP-infringement [Art. 10 to 13], in particular regarding enforcement and the amount of civil damages.

With regard to the latter category, unlike U.S. law which allows punative levels of damages in some cases, the Enforcement Directive clearly establishes that the infringer only has to pay civil damages appropriate to the actual prejudice suffered by him as a result of the infringement. However, the judicial authorities are allowed to set the damages in two ways:

• As a principle they shall take into account all appropriate aspects, such as negative economic consequences, including lost profits which the injured party has suffered, any unfair profits made by the infringer and - in appropriate cases - elements other than economic factors, such as the moral prejudice caused to the right holder by the infringement
• As an alternative, they can - in appropriate cases - fix damages as a lump sum on the basis of elements such as the amount of royalties or fees which would have been due if the infringer had requested authorisation to licence or use the intellectual property right in question.