A Busy Summer in Brussels
Published: July 22, 2020
Despite the COVID-19 crisis, the European Union is trying to keep on track with its 2020 Work Programme (WP 2020), which lists the legislative and non-legislative initiatives to be proposed by the end of the year. And INTA is following every step of the way to watch out for trademark owners’ interests.
There are several ongoing initiatives in the areas of consumer protection, e-commerce, artificial intelligence (AI), and design protection reform that are having an impact on intellectual property (IP) in general, and the fight against counterfeiting in particular.
Here, we provide a progress update on a few of the WP 2020 initiatives that are relevant to brand owners where INTA is actively engaged:
Digital Services Act—A New Intermediary Liability Regime?
Public consultation on the Digital Services Act (DSA) opened in June and remains open through September 2, 2020. Announced as early as July 2019 by European Commission President Ursula von der Leyen in her political guidelines, the DSA will aim at updating the current 2000/31 e-commerce Directive, notably on the sensitive issue of online intermediaries’ liability for illegal content or goods (such as counterfeits) “hosted” online.
INTA actions: In order to provide input to the EU public consultation, INTA is setting up a task force of members from the Anticounterfeiting, Internet, and Enforcement Committees to look at our own best practices (as well as parallel U.S. initiatives) and how they can be adapted to fit the DSA.
Next steps: A public consultation to receive input from stakeholders is ongoing until September 8. Then, the Commission will analyze the input received and hold targeted workshops on specific issues. A legislative proposal was expected by the end of 2020 but, given the delay due to the COVID-19 crisis, it could be postponed to 2021.
New Consumer Agenda—An Opportunity to Include Anticounterfeiting as a Key Pillar of Consumer Protection?
As part of the WP 2020, the Commission is considering updating its consumer agenda, that is, the EU consumer strategy that lists priorities to protect EU consumers via legislative and non-legislative initiatives. Announced before the COVID-19 crisis, the new consumer agenda became even more necessary in light of it, with the aim to “look at the impact of the COVID19 pandemic on consumers and draw the lessons for the future consumer policy.” This could potentially include a review of the General Product Safety Directive (GPSD 2001/95/EC). This presents a unique opportunity to include the fight against counterfeiting as a pillar of this agenda, given the unsafe nature of counterfeits and the dangers they represent for EU consumers’ health and safety, as evidenced by the numerous reports of fake COVID-19‒related products, such as tests and masks.
INTA actions: The INTA Anticounterfeiting Committee is currently drafting comments on the Commission’s Roadmap and also on the ongoing public consultation forum, targeting both the agenda itself and the opportunity to review the GPSD. In parallel, INTA is working on the European Parliament’s non-legislative report: Addressing Product Safety in the Single Market. This report will provide the Parliament’s recommendations (non-mandatory) to the Commission on the upcoming agenda. INTA was able to include counterfeiting in the scope of the report via several amendments and is now working to have these adopted in the final report.
Next steps: The period for comments on the Roadmap ends on August 11, while the public consultation closes on October 6. The Commission intends to propose the new consumer agenda in 2021, which could then include a legislative proposal to review the GPSD. The final Parliament report will be adopted in November.
AI for Registration and Enforcement of IP Rights?
An EU AI strategy is one of President von der Leyen’s priorities laid out in her political guidelines. At this stage, IP is not part of the scope of the AI White Paper published last February by the Commission.
INTA actions: INTA is working to include IP rights registration and enforcement related to AI in the Commission’s strategy. In that regard, INTA included several amendments in two ongoing, non-legislative parliamentary reports that will provide the EU Parliament’s recommendations to the Commission on AI strategy.
Next steps: Now that the public consultation is closed, the Commission expects to publish a proposal by the end of the year (here again, a delay given the COVID-19 crisis could be expected).
Assessing EU Design Protection Systems—Heading Toward Design Reform?
The Commission is assessing the EU design protection systems to possibly propose a review of the current EU legislative framework (Regulation and Directive). In April, the Commission published a report on the IP implications of 3D printing, which is meant to feed into the reform.
INTA actions: INTA has been advocating for a new legal framework that provides more harmonized, clear, efficient, and user-friendly procedures that take into account new technologies. In July 2018, INTA submitted, jointly with the European Communities Trademark Association (ECTA) and MARQUES (the European Association of Trademark Owners), a Paper on the Legal Review of EU Industrial Design Protection. In April 2019, INTA responded to the Commission’s Consultation on Design Protection in the EU. Recently, INTA’s Designs Committee analyzed the 3D-printing report and how it should influence the next steps of the Association’s contribution to the reform.
Next steps: The Commission will publish an Evaluation Report and Inception Impact Assessment (a preliminary assessment as to whether changes are needed and where) outlining the conclusions on the functioning of the EU design protection systems and the recommended directions for the future. Both documents are expected to be published in September 2020 and stakeholders will be invited to provide input.
EU Trade Policy Review—An Opportunity to Feature IP High in the Agenda?
In June, the Commission launched a major review of the EU’s trade policy, including a public consultation. The review will ultimately lead to the publication of a trade strategy for the current Commission’s mandate (2019‒2024). The importance of protecting, implementing, and enforcing IP rights is mentioned in the consultation note.
INTA actions: INTA advocates that IP should be framed as an essential pillar of a sound EU global trade strategy. Against that backdrop and through the relevant advocacy committees, the Association is preparing its contribution to the Commission’s consultation.
Next steps: Stakeholders have until September 15, 2020, to provide input to the public consultation. The Commission should then publish the communication on its trade policy strategy (non-legislative document) by the end of the year.
A New IP Strategy for 2020‒2024
The Commission is preparing, for September, a new IP strategy for the next four years of the Commission’s mandate. On July 11, the EU Commission opened a period for comments on the Roadmap on the new IP Action Plan
INTA actions: As early as September 2019, when the new Commission started its mandate, INTA shared a series of six recommendations to promote IP as a political priority, including the need for the creation of an IP Coordinator focusing on the fight against counterfeiting within the Commission. INTA is currently preparing its input to the Roadmap.
Next steps: The consultation on the roadmap ends on August 14 and the new IP strategy, initially scheduled to be unveiled on May 5 but postponed due to the COVID-19 crisis, should be unveiled after the summer.
Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.
© 2020 International Trademark Association
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