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
SUMMARY

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. ... (see full summary)

 
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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

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