Book review

Enforcement of Intellectual Property Rights in Dutch, English and German Civil Procedure, by George Cumming, Mirjam Freudenthal, Ruth Janal, addresses one of the questions posed more frequently by academics and bloggers than it is raised in court: what has been the real impact of EU Directive 2004/48 on the enforcement of intellectual property rights? The three authors of this tome, based respectively in Paris, Utrecht and Berlin, have completed a task not dissimilar to that which this reviewer commenced in 2005 but subsequently abandoned in favour of blogging: the construction of a systematic analysis of the IP Enforcement Directive within its immediate legal context. According to the publisher's (Kluwer's) web-blurb:

"The three authors’ vastly detailed, article-by-article analysis of the fortunes of Directive 2004/48 EC in three EU jurisdictions offers enormously valuable insights into the complex ways Member States respond to Community law, and in so doing provides an important addition to the ongoing inquiry into the nature of the reciprocal tensions between EU law (both judicial and legislative) and the laws of Member States.

The particular investigation undertaken here reveals three paradigmatic situations:

* the situation in which the Directive has not been implemented at all, either because the Member State believes that its current legislation is adequate or that the wording of the Directive is such that no special legislation is required (England);

* the situation in which implementation has been inadequate, because either the pre-existing legislation constitutes inadequate legislation or because the specifically adopted legislation proves to be legally uncertain (The Netherlands); and

* the situation in which the relevant time for implementation for the Directive has elapsed and no specific legislation has been adopted (Germany).

If there really is, as the European Commission contends, an ‘enforcement deficit’ in the protection of intellectual property rights by national rules of procedure, then the most effective remedial approach, Cummings shows, is through the principles of legal certainty, full effect, and effective judicial protection. These principles will assist the national court in interpretation of the precise meaning of the substantive obligations under the Directive. Drawing on the tenor of ECJ law that national procedural rules should not present an obstacle to adequate judicial protection, the author considers the conditions that must be fulfilled before an eventual claimant, who has suffered loss and damage caused by either the non-implementation or the incorrect implementation of a directive, may bring an action against the State for breach of Community law. ... ".

This is not at all the book that this reviewer planned to write, however. As the description suggests, it is at heart a jurisprudential work, addressing the relationship between the EU's legislative organs, the Member States and the Directive itself. Although the sincerely committed practitioner will find much of interest, particularly at the appellate level where the interpretation of implemented (or supposedly implemented) provisions of the Directive is the fulcrum around which litigation turns, this is not a "how to do it" manual for IP litigators. Written too early in the history of the implementation of the Directive to be able to analyse a large and indicative body of post-implementation cases, the book must draw on other sources -- which it does most effectively; this inevitably gives it the more fragrant aroma of the corridors of the legislature rather than the stench of contested infringement proceedings.

For the patent litigator there are discussions of such live issues as cost-capping, as well as reviews of other issues that apply across all IP rights. The text is well organised and retains the reader's attention. It also provides an excellent basis for getting to know the Directive, having the ability to introduce the intelligent reader to the topic while not in any sense being a beginner's-only read.

Bibliographic details: publisher Wolters Kluwer (October 2008), ISBNs 9041127267 and 13: 9789041127266. Hardcover, xiv + 317 pp. Website here.