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In-Depth Information
Agreement, 'it is indeed under an obligation to interpret its trade-mark
legislation, as far as possible, in the light of the wording and purpose of that
agreement'.
153
It observed that:
when called upon to apply national rules with a view to ordering measures for the
protection of rights in a field to which the TRIPS Agreement applies and in which the
Community has already legislated, as is the case with the field of trade marks,
the national courts are required under Community law to do so, as far as possible, in the
light of the wording and purpose of the relevant provisions of the TRIPs Agreement.
154
1. Temporal application of the TRIPS Agreement
6.157
In Case C-245/02
Anheuser-Busch Inc v Bud˘jovický Budvar
155
the Court held
that applying Art 70(2) of the TRIPS Agreement, obligations arising from that
Agreement apply in respect of 'all subject-matter existing … and which is
protected' on the date of application of that Agreement to a Member of the
WTO so that, 'from that date, such a member is required to fulfil all the
obligations arising from that agreement in respect of that existing subject-
matter'.
156
6.158
Furthermore, the Court pointed out that Art 70(4) of the TRIPS Agreement
applied to acts in respect of specific objects embodying protected subject matter
which become infringing under the terms of legislation in conformity with that
Agreement, and which were commenced, or in respect of which a significant
investment was made, before the date of acceptance of the WTO Agreement.
In such a situation, Art 70(4) allows the members to provide for limitations of
the remedies available to the holder of the right against continued performance
of such acts after the date of application of the TRIPS Agreement to the WTO
member concerned.
157
Thus in the case before it the acts which the defendant
was alleged to have committed had occurred before the date of application of
the TRIPS Agreement but continued after that date, so the Court ruled that the
TRIPS Agreement applied to that situation.
158
153
Ibid, at para 42.
154
Ibid, at para 55.
155
[2005] ETMR 286.
156
Ibid, at para 49.
157
Ibid, at para 50.
158
Ibid at para 52.
