EU Constitution will have an impact on trademark law

European Union

The EU Constitution, which was agreed on June 18 2004 and formally signed on October 29 2004, will have an impact on trademark law in the European Union as it formally sets out how IP laws will be adopted. If ratified by the member states, the Constitution will come into effect on November 1 2006.

Although much of the press comment has focused on changes from the current EU regime, a large proportion of the Constitution is effectively a consolidation of the EC Treaty and the EU Treaty. There is one new provision on intellectual property, Article III-68, which reads as follows:

"In establishing an internal market, measures for the introduction of European instruments to provide uniform intellectual property rights protection throughout the union and for the setting up of centralized union-wide authorization, coordination and supervision arrangements shall be established in European laws or framework laws.

A European Law of the council shall establish language arrangements for the European instruments. The council shall act unanimously after consulting the European Parliament."

The fact that Article III-68 is written in two parts has some practical significance. The first paragraph permits the adoption of new IP laws by a qualified majority of the European Council and a simple majority of the European Parliament (this being the normal requirement for "ordinary legislation" - Article III-302). The second paragraph language, however, requires unanimity in the council (although under Article III-246, abstentions do not destroy "unanimity" if there are no votes against). Under Article I-24 of the proposed Constitution, a qualified majority in the council will be achieved by votes of at least 15 member states constituting at least 55% of the member states, as long as the population of these states is at least 65% of the population of the European Union.

Previously existing IP features of the EC Treaty that have been incorporated into the new Constitution include the following:

  • Article 29 (free flow of goods) in Article III-42;

  • Article 30 (derogation from free flow for intellectual property) in Article III-43;

  • Article 81 (agreements in restraint of trade unlawful) in Article III-50;

  • Article 82 (abuse of a dominant position unlawful) in Article III-51;

  • Article 133 (common commercial policy including intellectual property) in Article III-217;

  • Article 225a (ability to create specialist courts) in Article III-264; and

  • Article 229a (European laws may give the European Court of Justice jurisdiction over IP rights) in Article III-269.

John Richards, Ladas & Parry, New York

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