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In-Depth Information
wrong-doer may also be an effective deterrent. Because even lump-sum dam-
ages calculations can be difficult to quantify precisely or consistently the
European Observatory on Counterfeiting and Piracy recommended that
Member States should provide that a 'predetermined' calculation method for
determining lump-sum damages, reflecting a reasonable approximation of all
negative economic consequences that the right holder is likely to have suffered,
is available as an alternative to any other means of determining damages - at a
minimum in copyright and trade mark cases.
41
It noted that several Member
States allow double awards
42
or triple awards
43
of proven damages in certain
cases as a measurement of the full range of damage incurred by the right holder.
v.
Legal costs
7.72
Article 14 of the Enforcement Directive provides that Member States shall
ensure that reasonable and proportionate legal costs and other expenses
incurred by the successful party shall, as a general rule, be borne by the
unsuccessful party, unless equity does not allow this.
vi. Publication of judicial decisions
Recital (27) of the Enforcement Directive explains that to act as a supplemen-
tary deterrent to future infringers and to contribute to the awareness of the
public at large, it is useful to publicise decisions in intellectual property
infringement cases.
7.73
7.74
Article 15 of the Enforcement Directive provides that Member States shall
ensure that, in legal proceedings instituted for infringement of an IPR, the
judicial authorities may order, at the request of the applicant and at the expense
of the infringer, appropriate measures for the dissemination of the information
concerning the decision, including displaying the decision and publishing it in
full or in part. Member States may provide for other additional publicity
measures which are appropriate to the particular circumstances, including
prominent advertising.
41
Ibid.
42
Eg Austria, Czech Republic, Germany, Greece and Poland.
43
Belgium, Poland, Romania.
