Damages and legal costs under the Enforcement Directive in the light of rulings of the European Court of Justice

Abstract

The possibility of compensation for damage caused by an infringement of intellectual property rights and of claiming the recovery of legal costs and other expenses incurred in connection with enforcing such rights is crucial for the effectiveness of their protection. Uniform rules in this respect have been introduced by Enforcement Directive. (Directive 2004/48/EC of the European Parliament and of the Council of 29.4.2004 on the enforcement of intellectual property rights [2004] OJ L157/45 (Directive 2004/48).) The purpose of this article is to analyse to what extent the case-law of the European Court of Justice to date has made it possible to give an unambiguous answer regarding the model of implementation of Directive 2004/48 which meets the requirements of proportionality and, at the same time, of the effectiveness of the protective measures envisaged for intellectual property rights.