10 January 2010

Lisbon: All Change

My first inkling that the Lisbon Treaty was not something that IP practitioners could ignore was when I saw the following paragraph in the EPO's press release on the "EU patent" of 18 Dec 2009:
"With the entry into force of the Lisbon Treaty, the European Union replaced and succeeded the European Community and has been endowed with legal personality. Therefore, the Community patent is now called the "EU patent" and the European and Community Patent's Court (ECPC)" has been renamed the "European and European Union Patent's Court (EEUPC)".
The reason for my double take was that the EU has been in existence ever since the Treaty of Maastricht in 1993 but we never hear talk of an "EU trade mark" or a "registered European Union design" so I had a look at the Competitiveness Council's proposal. Sure enough, I found the following words "In view of the entry into force on 1 December 2009 of the Lisbon Treaty, the term 'Community' has been replaced by 'European Union'".

"True enough", I thought, so I took a butcher's at the OHIM website and was vaguely reassured to find references to the Community trade mark and the Community design even though the office now describes itself as "The Trade Marks and Designs Registry of the European Union".

The reason for the change is that art 2 (2) (a) of the Lisbon Treaty provides:
"Throughout the Treaty:
(a) the words ‘Community’ and ‘European Community’ shall be replaced by ‘Union’ and any necessary grammatical changes shall be made, the words ‘European Communities’ shall be replaced by ‘European Union’, except in paragraph 6(c) of Article 299, renumbered paragraph 5(c) of Article 311a."
More importantly, the Treaty of Rome becomes the "Treaty on the Functioning of the European Union" ("TFEU") so we can no longer write "art. 81 EEC" or "art 234 EEC" but have to remember the new acronym. More importantly still, arts. 28 and 30 EEC on quantitative restrictions have become 34 and 36 TFEU, arts. 81 and 82 EEC have become arts. 101 and 102 TFEU respectively (though it took some time for DG Competition to amend its website to that effect) and art 234 EEC on preliminary references to the European Court of Justice has become art. 267 TFEU.

On the subject of courts, the Court of First Instance ("CFI") is now known as the General Court. As I have alluded above, should the proposed regulation for a European Union patent ever be adopted, we shall have to get used to a "European and European Union Patents Court". What fun!

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