By way of a Regulation 386/2012, which was published on 16 May 2012, the Office for Harmonization in the Internal Market (OHIM) has been entrusted with certain tasks relating to tackling the infringement of intellectual property rights.
In 2008, the European Commission established the European Observatory on Counterfeiting and Privacy. The Observatory consisted of a network of experts tasked by the Commission with enhancing the enforcement of IP rights in the European Union. It was to serve as a central resource for gathering, monitoring and reporting information related to the infringement of IP rights, and was to be used as a platform by national authorities to discuss best practices.
As part of its review of the European Trade Mark system, the European Council called on the Commission to involve OHIM in the enforcement of IP rights. The rationale was, as OHIM already acts as a Europe-wide registrar of rights, and in doing so cooperates extensively with national authorities, it has the experience and expertise to provide the infrastructure for the Observatory. Accordingly, under Regulation 386/2012, the Observatory has been brought within OHIM’s remit. It has also been re-titled the “European Observatory on Infringement of Intellectual Property Rights”. The Observatory will monitor the rights set out in the Enforcement Directive (2004/48/EC), which includes copyright, trade marks, design rights and patents.
EUROPEAN OBSERVATORY ON INFRINGEMENT OF IP RIGHTS
The tasks of the Observatory are broad, but it is important to note that the Observatory—and therefore OHIM—is not granted an enforcement role per se. As its title suggests, the role of the Observatory is observe and assess the state of IP infringement in the European Union; the Regulation excludes explicitly the involvement of the Observatory in individual investigations. Instead, the aims of the Observatory are to raise awareness and understanding of IP infringement, the technical tools available to prevent and tackle infringement, and to foster international cooperation to build strategies to enforce IP rights.
As part of its organisation of the Observatory, OHIM is required to provide regular assessments and reports by economic sector, geographical area and the type of rights infringed. National authorities are obliged, on request (or at their own initiative), to supply OHIM with information regarding infringement and their policies. OHIM is also tasked with drawing up publications to raise awareness amongst citizens of the impact of IP infringements. OHIM is required to organise meetings of the Observatory at least once per year and fund the activities of the Observatory from its own budget.
Although commentators have questioned the benefits of a body tasked merely to observe infringements rather than act on them, OHIM is well placed to collate such information and push for the adoption of best practice. Infringement remains a question for national courts, but the position of OHIM on enforcement policies is likely to be persuasive when national authorities are asked to provide their views as national approaches are reviewed.
A uniform approach to infringement across the European Union would naturally benefit right holders, but this appears to be a long way from fruition. Given the limitations on the competence of the Commission to grant enforcement powers to OHIM, and OHIM’s well-documented budget surplus, placing the Observatory in the hands of OHIM should be seen as a tentative step in the right direction.