European Commission Wraps Up Work as Elections Near

Published: May 15, 2018

One year before the next European elections, which will take place May 23–26, 2019, the European Union (EU) institutions are running out of time to wrap up their mandate.

The European Commission (Commission) is publishing its last legislative initiatives, such as the “Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for Electronic Evidence in Criminal Matters,” as well as non-legislative ones, such as its “Communication on Artificial Intelligence for Europe” and the “Public Consultation on Measures to Further Improve the Effectiveness of the Fight Against Illegal Content Online.”

Published on April 18, the “Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for Electronic Evidence in Criminal Matters” aims notably at introducing both a European “Production” and a “Preservation” Order.

  • The European Production Order will allow a judicial authority in one EU member state to request electronic evidence (such as emails, texts, or messages in apps) directly from a service provider offering services in the EU and established or represented in another member state, regardless of the location of data. This service provider will be obliged to respond within ten days, and within six hours in cases of emergency (as compared to 120 days for the existing European Investigation Order, or ten months for a Mutual Legal Assistance procedure).
  • The European Preservation Order will allow a judicial authority in one EU member state to oblige a service provider offering services in the EU and established or represented in another member state to preserve specific data to enable the authority to request this information later via mutual legal assistance, a European Investigation Order or a European Production Order.

While the proposal will need to be amended and adopted by both the EU Parliament and the Council, INTA’s Enforcement Committee is currently assessing potential advocacy efforts.

The Commission also wishes to be involved in the field of artificial intelligence (AI), in line with its Digital Single Market Strategy. The very first step was the “Declaration of Cooperation on Artificial Intelligence (AI),” signed by 24 EU member states and Norway on April 10, 2018. This Declaration acted as a list of principles-without concrete actions-for cooperation among the signatories on AI. The Commission’s Communication published on April 25 is a non-binding instrument that sets out a roadmap of actions to be taken at the EU and member state levels for the 2018-2020 period. These actions revolve around three main areas:

  • Investment: the Commission recommends an increase of public-private investments in AI research and innovation by at least €20 billion between now and the end of 2020;
  • Education: the Commission encourages member states to modernize their education and training systems to attract and retain more AI talent in Europe;
  • Legal and Ethical: the Commission will present ethical guidelines on AI development by the end of 2018, based on the EU’s Charter of Fundamental Rights, taking into account principles such as data protection and transparency.

Finally, on May 2, the Commission opened a “Public consultation on measures to further improve the effectiveness of the fight against illegal content online,” which will remain open through July 25. This consultation follows the Commission’s Communication (non-legislative, non-binding) with guidance on the responsibilities of online service providers with respect to illegal content online from September 28, 2017, and its Recommendation (non-legislative, non-binding) on measures to effectively tackle illegal content online from March 1, 2018. The scope and objective of the consultation is uncertain. INTA’s Europe Representative Office will be monitoring whether the Commission will decide to address intermediary liability in the fight against counterfeiting through new legislation or continue promoting voluntary practices.

INTA Top Leadership Visit and Meetings on Enforcement

INTA’s Europe Representative Office enjoyed a visit from its top leadership in Brussels, Belgium, last month. INTA CEO Etienne Sanz de Acedo traveled to Europe to raise awareness on brand value, brand restrictions, and the impact of counterfeiting. Mr. Sanz de Acedo began his trip in Paris, France, where he and INTA Anticounterfeiting Manager Maysa Razavi attended the Union de Fabricant’s European IP Forum and held side-meetings on April 5 and 6 with representatives from the French National Institute of Industrial Property, French Customs, the Organisation for Economic Co-operation and Development, and other user associations. On April 9, Mr. Sanz de Acedo gave an exclusive presentation to the Cultural Committee of the Spanish Senate in Madrid, Spain. He ended his trip in Brussels to give a speech on the impact of counterfeiting at the Foundation Robert Schuman’s event on “Smuggling, Counterfeiting, and Terrorism Financing,” held on April 11. Mr. Sanz de Acedo also held various side meetings, including a meeting with Ana B. Hinojosa, Director of Compliance and Facilitation, World Customs Organization (WCO), to discuss possible areas of cooperation.

From April 23 to 25, INTA 2018 President Tish Berard (Hearts On Fire Company, LLC, USA), was in Brussels to hold meetings with government officials and private stakeholders to raise awareness about the link between small and medium-sized enterprises (SMEs) and IP and innovation. Ms. Berard has created a 2018 Presidential Task Force on SMEs. She met with representatives from the European Union Intellectual Property Office; Member of European Parliament and Vice-Chair of the EU Parliamentary Committee, “Internal Market and Consumer Protection,” Catherine Stihler (Socialists & Democrats, UK); Advisor to INTA Board Andrea Gerosa (ThinkYoung AISBL, Switzerland); and the European Association of Craft, Small and Medium-Sized Enterprises. Ms. Berard also attended a panel dedicated to challenges for IP at the American Chamber of Commerce to the EU plenary session, followed by a high-level luncheon with stakeholders and government officials.

From April 17 to April 19, the European Observatory on Infringements of Intellectual Property Rights (Observatory) held its traditional spring Working Group (WG) sessions in Brussels. INTA members of the Joint EU Observatory Taskforce attended the meetings: Taskforce Chair Elio di Tulio (Di Tulio & Partners, Italy) for the “Enforcement” WG; María GonzÁlez Gordon (Gómez-Acebo & Pombo, Spain) for “IP in the Digital World” and “Legal and International” WG; Lorenzo Litta (Spheriens, Italy) for the “Public Awareness” WG; and Rupert Ross-McDonald (Rouse LLP, UK) for the “Economics and Statistics” WG. All members, together with INTA’s Europe Representative Office Policy Officer Hadrien Valembois, attended the common session where, among other issues, participants discussed the restructuring of the Observatory WGs (from five WGs currently to nine, with a possible split of counterfeiting and piracy between two WGs, whereas the two topics are presently covered by one WG; as well as restrictions on the number of stakeholders allowed per WG). The Observatory’s proposal is a work in progress in collaboration with private stakeholders.

INTA was also represented by Paola Piccoli (Maus Frères, France) and Mr. Valembois on April 19 at the EU Observatory’s Expert Group on Anticounterfeiting Technology dedicated to best practices from the private and the public sector for product authentication and tracking and tracing. Discussions also covered the 2018-2020 Action Plan of the Expert Group as well as block chain technology and product tracking and tracing.

On April 24, INTA Europe Representative Office Policy Officer, Carolina Oliveira, attended a public hearing hosted by the European Parliament’s committee on “Legal Affairs” dedicated to “The Hague Judgments Projects.” The panelists at the hearing, including government officials and private stakeholders, discussed the scope and the objectives of the Hague Convention on Recognition and Enforcement of Judgments and provided an update on the status of its negotiations at the Hague Conference on Private International Law. There is no consensus on whether the Convention should cover IP rights; INTA is advocating for the inclusion of trademark judgments.

As part of the World IP Day celebration on April 27, INTA Europe Chief Representative Officer, Hélène Nicora attended a panel discussion in Brussels, sponsored by the U.S. Mission to the European Union, on the role of women on innovation and protection of IP rights. Representatives of the Commission, European Patent Office, WCO, and the Digital Leadership Institute were among the participants.

Finally, the Europe Representative Office provided support on advocating for an open, accessible, and accurate WHOIS system after the entry into force of the European Union General Data Protection Regulation. On May 7, the Europe Office, together with INTA Senior Director for Internet Policy, Lori Schulman, held a series of high-level meetings with relevant stakeholders and decision-makers to further explain the importance of retaining an open WHOIS database for enforcement purposes.

Don’t Miss These Sessions and Events in Seattle!

If you have registered for our 140th Annual Meeting and are interested and/or practicing in Europe, do not miss these educational sessions and events focused on Europe, where you will have the opportunity to hear from European government officials and practitioners:

  • INTA’s “International IP Court”: with representatives from the judiciaries of Norway, Portugal, Ireland, the Netherlands, Germany, and other regions of the world-May 19, 9:00 am-10:30 am;
  • TM5 Users Meeting: an open session with users conducted by the EUIPO, USPTO, SAIC (China), KIPO (Korea), and JPO (Japan)-May 20, 8:30 am-10:00 am;
  • The Fate of Color Per Se Marks in Europe-May 21, 11:45 am-1:00 pm;
  • Registering Non-Traditional Marks and Proving Acquired Distinctiveness in China, EU, Japan, Korea, and the United States.: A TM5 Workshop-May 21, 1:15 pm-3:15 pm;
  • Annual Review of Leading Case Law in the European Union–May 22, 10:15 am-11:30 am.
    • Read the latest EU Annual Review in the current issue of The Trademark Reporter at www.inta.org/tmr;
  • 3D Trademarks After Rubik’s Cube-May 22, 11:45 am-1:00 pm; and
  • Planning for Brexit-Tuesday, 3:30 – 4:45 pm.

The INTA Annual Meeting will of course cover sessions on other jurisdictions across the world, as well as global topics. Make sure you see the full educational program at www.inta.org/2018AM.

If you have not yet registered for the Annual Meeting but are still considering attending, please note that online registration closes on May 17, but onsite registration will be available!

Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

© 2018 International Trademark Association