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NATIONAL LAW IMPLEMENTING THE ENFORCEMENT DIRECTIVE
A. PRIMARY AND SECONDARY LAW
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 (the “Enforcement Directive”) on the enforcement of intellectual property rights was transposed in Romania through Government Emergency Ordinance No. 100/2005 on the Enforcement of Industrial Property Rights (“GEO 100/2015”), adopted by Law No. 280/2005 approving Government Emergency Ordinance No. 100/2005 on the Enforcement of the Industrial Property Rights and further amended by Law No. 214/2008 supplementing Government Emergency Ordinance No. 100/2005 on the Enforcement of Industrial Property Rights.
The Enforcement Directive also entailed amendments to the following Romanian intellectual property (IP) acts:
– Government Emergency Ordinance No. 123/01.09.2005 (“GEO 123/2005”) for amending and completing Law No. 8/1996 on copyright and related rights (“Law No. 8/1996”);
– Law No. 76/2012 implementing Law No. 134/2010 of the Romanian Code of Civil Procedure – Article 75, 255, 978–979, 997–1002 (“CPC”);
– Law No. 255/2013 applying Law No. 135/2010 regarding the Criminal Procedure Code and the modification and completion of several normative acts.
TRANSPOSITION ISSUES
GEO 100/2015 literally transposed all of the provisions of the Enforcement Directive into Romanian law, even if certain measures and remedies were already provided for by special laws protecting IP rights and further supplemented by the general provisions of Romanian civil law. Romania had adopted civil, criminal and administrative sanctions against infringements of IP rights and also remedies for enforcing such rights, immediately aft er ratification of the TRIPs agreement.
Article 3 of the Enforcement Directive refers to the general principle on measures, procedures and remedies that must be provided by the Member State in order to ensure the enforcement of IP rights in fair and equitable terms. It was transposed as such into Romanian law through Article 3 of GEO 100/2015.
The application of the principles set out in Article 3 of GEO 100/2015 (and correspondingly Article 3 of the Enforcement Directive) was refl ected over time in the relevant case law, including in the following:
– decision No. 2072 of 27 June 2014 of the High Court of Cassation and Justice, concerning the calculation of patrimonial and moral damages resulting from the infringement of a word mark (among other things) applied the principle of proportionality between the actual nature of the damages to be repaired and the rights infringed, so as to avoid creating obstacles to legitimate trade;
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