Enforcement of Intellectual Property Rights in Luxembourg

Abstract

NATIONAL LAW IMPLEMENTING THE ENFORCEMENT DIRECTIVE A. PRIMARY AND SECONDARY LAW 1. Primary law The Directive 2004/48/CE on the enforcement of intellectual property rights (hereinaft er the “Enforcement Directive”) was implemented in Luxembourg by the law of 22 May 2009 (hereinaft er the “Law of 2009”) which amended both the law of 18 April 2001 on copyrights, neighbouring rights and databases rights (hereinaft er the “Copyright Law”) and the law of 20 July 1992 amending the rules on patents (hereinaft er the “Patent Law”). As well as amending the Copyright and the Patent Law, the Law of 2009 also contains a set of independent provisions (Art. 20 to 30) about evidence preservation (Art. 7 of the Enforcement Directive) and provisional and precautionary measures (Art. 9 of the Enforcement Directive). Those provisions are incorporated by reference into the Copyright and the Patent Law. Regarding trademark and design rights, it is worth noting that the Enforcement Directive was implemented by the Benelux Convention on Intellectual Property (hereinaft er the “Benelux Convention”). 2. Secondary law No secondary law has been adopted in Luxembourg regarding the transposition of the Enforcement Directive. B. TRANSPOSITION ISSUES As the Enforcement Directive was only transposed in Luxembourg by the Law of 2009 while the deadline for transposition expired on the 29 April 2006, the Grand Duchy of Luxembourg was condemned by the Court of Justice of the European Union for its failure to transpose the Enforcement Directive within the prescribed timeframe. The Grand Duchy of Luxembourg did not deny the failure to comply with the set deadline, but argued that, given the infl uence of Belgian and French legislations and case laws in the field of intellectual property rights in Luxembourg, it was necessary to wait for both the French and Belgian transpositions before implementing the Enforcement Directive in Luxembourg. In this regard, it is worth noting that the Law of 2009 is similar (if not identical) to the wording of the Belgian transposition of the Enforcement Directive in many regards. JURISDICTION AND COMPETENCE A. COMPETENCE OF LOCAL COURTS Competence of local courts for copyrights, neighbouring rights and databases rights legal issues (Art. 79 and 81 of the Copyright law, Art. 23, 27, 28 and 29 of the Law of 2009): – The “Tribunal d'arrondissement” of Luxembourg is competent to conduct fi rst-instance proceedings.