Harmonization of national procedural provisions concerning the enforcement of intellectual property rights

• Author: Paul-George Buta
• Position: Assistant Professor, PhD, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: paul.buta@univnt.ro).
• Pages: 15-27

LESIJ NO. XXII, VOL. 2/2015

HARMONIZATION OF NATIONAL PROCEDURAL

PROVISIONS CONCERNING THE ENFORCEMENT OF

INTELLECTUAL PROPERTY RIGHTS

Paul-George BUTA*

Abstract

This short paper looks at provisions concerning very specific aspects provided for at

international, regional and national level and analyzes the level of harmonization between such. Given

the importance of provisional measures (and especially of preliminary injunctions) for the protection

of intellectual property rights, the provisions concerning this subject were the main focus of our

analysis. Found in TRIPS, the EU IP Enforcement Directive and national Romanian statutory

provisions, we’ve concluded that these are not directly applicable in disputes in Romanian courts and

were therefore, as a result of multiple international obligations, supposed to be harmonized. We’ve

looked at different aspects in parallel with the development of implementation mechanisms and found

that, despite the aforementioned obligations, not even the Directive is fully TRIPS compliant, let alone

the Romanian national statutory provisions. We’ve therefore concluded that, even if common sense

would dictate that protection at more levels would equal more protection this is not necessarily true,

given the fact that multiple harmonization requirements create more opportunity for divergent

implementation results – influenced by either benign factors (different national legal traditions,

different interpretations) or malign (lack of perspective and/or understanding, rush to implementation).

Keywords: harmonization, intellectual property rights, provisional measures, preliminary

injunctions, TRIPS, IP Enforcement Directive, procedures.

1. Introduction *

It is generally accepted that

intellectual property is only protectable by

legal means which makes the legal

protection of intellectual proper ty to be

regarded as more valuable t han its physical

embodiment

1

.

Without going into the details of it, we

could shorthand legal protection in this case

to mean the possibility of asserting a claim

related to intellectual property rights against

someone with a correlative duty to act (or

* Assistant Professor, PhD, Faculty of Law, ”Nicolae Titulescu” University of Bucharest (e-mail:

paul.buta@univnt.ro).

1

Jeremy Phillips and Alison Firth, Introduction to Intellectual Property Law, 4th ed. (Oxford: Oxford University

Press, 2006), 12-13.

2

„legal right”, Bryan A Garner (ed.) Black’s Law Dictionary, 8th ed. (St. Paul: Thompson West, 2004), 1348

abstain from certain acts)

2

. Therefore

enforcement o f intellectual property rights

goes to the core of their value and is

intrinsically linked with the very existence

of such value.

There is no surprise theref ore that

provisions concerning the enforcement of

intellectual property rights were inserted in

acts existing at national, regional and

international level.

Such provisions deal with both

material and procedural aspects of the

enforcement of intellectual property rights.

Since for the purposes of comparison