The internationalisation of the EU judiciary brings the need to develop knowledge and skill in different domains of law, direct and indirect related to judges’ daily activity. My inner belief in this principle and an older desire to find connections between international insolvency and intellectual property fields brought my steps to the EUIPO Seminar “Judges’ Seminar on weak trade-mark elements,18-19 June 2019, Alicante.[1]
The passion for the international aspects of the intellectual property, patent law and trade-mark law is not quite new, I have started to come closer to the EU patent and trade mark law systems since 2016, through e-learning courses, the seminars and Conferences organised by the European Union Intellectual Property Office (EUIPO)[2], formerly known as Office for Harmonization in the Internal Market (OHIM), and the European Patent Academy – European Patent Office (EPO)[3]. The Judicial Internships at the EPO Boards of Appeal, In June 2018, Munich[4], was also an amazing experience.
The Seminar organized by the EUIPO in June 2019, with judiciary from all over the EU as participants, demonstrated an extraordinary management and high level of technical presentations. Besides these aspects, there was provided important information on the EUIPO research programs developed under the general concept “The Convergence Programmes”.[5] The programs are relevant for the practice of national authorities with competences, for interested parties, for the judiciary involved in the field of intellectual property, but also for international judicial cooperation and harmonization of the jurisprudence at EU level.
The EUIPN[6] has developed a number of common practices and guidelines for trade-mark and design registration and examination, significant
not only for the activity of the National and Regional IP Offices: „Practices. Common standards and practices for enhanced transparency, consistency and certainty”.[7] In the attempt to obtain a level of harmonisation at EU level in the domain of intellectual property and a cooperative environment in relations between national offices, the EUIPO and users, the main goal of this complex program is to “to establish and communicate clarity, legal certainty, quality and usability for both applicant and office”[8].
As they are presented in the official documents, there are four fundamental activities destinated to enlarge the convergence process in the IP domain: “1) A Common Practice including a common approach to be set out in a document and translated into all EU languages; 2) A common communication strategy for this practice. 3) An action plan to implement the Common Practice. 4) An analysis of the needs to address the past practice”[9].
The purpose of the present paper is not to analyse trade-mark rights as an essential element in the system of undistorted competition, the principles for registering or for refusal of registering the trademarks in the light of the public interest or other similar substantive subjects. From the perspective of the national judge, the existence of international guidelines relevant to judicial practice becomes essential, also in the field of intellectual property. As a member of the EU judiciary, I am trying to promote a more pragmatic perspective, in order to embrace a “flexible interpretation of legal provisions, soft-law mechanisms and legal doctrines”[10], not only in the area of cross-border insolvency, but to the same extent in the field of the European intellectual property law.
EU soft-law experience reveals the need to adapt the international guidelines to the specificity of different civil and common law EU jurisdictions, through the efforts of the national offices and the jurisprudence. In this context, the guidelines and practices promoted through the EUIPO programs should be made widely available and easily accessible, “providing a clear and comprehensive explanation of the principles on which the new Common Practice is based”. The purpose is to obtain a general application to a large majority of cases, to ensure at EU level similar and 
predictable results.
Sustained efforts should be made by the EUIPO and national authorities to bring closer the guidelines to national offices, member of the judiciary, the national specialists and especially to the main beneficiaries of the IP systems, in an efficient and simple manner. Under these aspects there are still many things to be done. Otherwise, the main goal of the EUIPO project, the harmonization of the European practice in the field of intellectual property law, will remain just a beautiful dream.
[1] Available here and here.
[2] EUIPO Academy Learning Portal, available here.
[3] EPO Online training, available here and here.
European Patent Academy seminars, conferences and training programs, available here.
[4] Judicial internships at the Boards of Appeal, for details on actual program, available here.
[5] Convergence Central Team Work Programme 2015, available here.
[6] For more information about the European Union Intellectual Property Network (EUIPN) and its programs, available here.
[7] Convergence programs are available online here.
[8] Available here.
[9] Available here.
[10] The article is available online for INSOL Europe members, at (https://www.insol-europe.org/publications/about-eurofenix). It will be soon available online for all readers at (https://www.insol-europe.org/publications/eurofenix-past-issues)
Judge Nicoleta Mirela Năstasie