Court of Justice of the European Union ("CJEU")

The Court of Justice of the European Union is the judicial institution of the Union, established by Article 19 of the Treaty on European Union. It comprises the Court of Justice and the General Court, and it ensures that the law is observed in the interpretation and application of the Treaties. In intellectual property its role is decisive: it gives a uniform interpretation of the directives and regulations harmonising the law of trade marks, designs, copyright, supplementary protection certificates and enforcement measures, and it reviews the legality of decisions of the Union’s offices.

The preliminary reference

The main route by which the Court intervenes in intellectual property is the preliminary reference procedure under Article 267 of the Treaty on the Functioning of the European Union. Any national court may, and courts of last instance must, refer a question for a preliminary ruling on the interpretation of EU law to the Court where an answer is necessary to decide the dispute. The resulting judgment binds the referring court and, by its interpretative authority, is binding on all the courts of the Member States. Most of the cardinal concepts of trade mark law, such as likelihood of confusion or genuine use, and of copyright, such as originality or communication to the public, have thus received an autonomous definition developed by the Court. The Unified Patent Court, a court common to the participating Member States, is also required to cooperate with the Court and may make preliminary references to it.

Review of EUIPO decisions

Decisions of the Boards of Appeal of the EUIPO concerning EU trade marks and Community designs are subject to an action for annulment before the General Court of the European Union. Judgments of the General Court may be appealed to the Court of Justice on points of law only. Such appeals are subject to a prior admission mechanism, the Court examining them only if they raise an issue that is significant with respect to the unity, consistency or development of EU law.

Interaction with the French courts

The French intellectual property judge applies national law in the light of the directives as interpreted by the Court and applies regulations directly. Where a question of interpretation arises, the judge may stay the proceedings and make a reference, which lengthens the proceedings by several months but makes the outcome more secure. Patent law, which the Union has harmonised little apart from supplementary protection certificates and biotechnological inventions, largely falls outside the Court’s interpretation, unlike trade mark law and copyright.

Key points

The CJEU ensures the uniform interpretation of EU law in intellectual property through the preliminary reference procedure and through the review of EUIPO decisions via the General Court. Its judgments settle the meaning of harmonised concepts and are binding on national courts. In any trade mark or copyright dispute, the Court’s case law on the concept at issue should be checked systematically, and the merits of seeking a reference assessed where the question has not been settled.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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