In a context in which EU businesses are continuously more challanged with innovation, creativity and quality, intellectual property is an important tool for increasing the competitiveness of all businesses, including small and medium-sized enterprises.
The guidelines on the Enforcement Directive no. 2004/48/EC, recently published by the European Commission, are borne from these premises. As known, the Directive lays down minimum standards, to which all Member States must refer in order to ensure effective legal protection of intellectual property rights. The aim of the guidelines is to facilitate the interpretation and application of the Directive, by the competent judicial Authorities and other interested parties.
Among the various points established by the Commission, it should be stressed the need to ensure adequate compensation for the damage suffered by the holders of the infringed rights. Another important issue covered by the guidelines is the balancing of rights and interests with regard to the injunctions against intermediaries and filtering systems. In this respect, in citing Recital 48 of the Directive, the Commission endorses the possibility, for judicial authorities, to impose specific duties of care to certain online service providers, for example in order to prevent the uploading of content that infringes intellectual property rights. In other words, without requiring a general surveillance obligation, a specific monitoring obligation is recognised, i.e. requiring the service providers to fulfil a reasonable duty of care, so as to detect and prevent certain types of illegal activities.
A final remark is made on the scope of the injunctions. The Commission highlights that the injunctions may often become ineffective, due to certain changes in the subject-matter of the measure. This may be the case, for example, of a block injunction of a website, where, while a competent judicial Authority has issued an injunction directed to a certain domain name, specular sites may easily appear under other domain names, which are not affected by the measure. In this regard, in consideration of the Article. 9, par. 1 (a) of the Enforcement Directive and the case law of the European Court of Justice (C-324/09, L'Oréal v. eBay, paragraph 131), the Commission points out that a possible solution are the so-called dynamic injunctions. These are injunctions that can be issued, for example, in cases where the same website becomes available immediately after an injunction with a different IP address or URL, with wording that also includes the new IP address or URL, without the need for a new court proceeding to obtain another injunction.