Challenges of the Knowledge Society (May 2017)
CONSIDERATIONS ON THE CALCULATION OF DAMAGES IN INTELLECTUAL PROPERTY INFRINGEMENT CASES. RIGHT HOLDER’S LOSS AND UNFAIR PROFITS OF THE INFRINGER. CUMULATION
Abstract
This short article deals with a specific problem of interpretation of Romanian law on the enforcement of IP rights, namely the possibility of having the court set damages to the right holder by taking into account both the right holder’s loss and the infringer’s unfair profits. The two criteria for the assessment of damages are specifically provided for by law and are also expressly provided for by the EU IP Rights Enforcement Directive which was implemented in Romania. While the possibility of referring to either of the two remains uncontested, the possibility of cumulating the two has been denied in some decisions of the Romanian High Court. In order to do so the High Court has interpreted Romanian law so as to comply with the provisions of the EU Directive read by taking into account one of the recitals to the directive which seems to only allow for the criteria to be used alternatively and not cumulatively. The article examines this interpretation and concludes that the curt ought not to have referred to the text of the EU Directive and that, even if it would do so, could not base its interpretation on the recital, as it did and should have come to the conclusion that the cumulation of the two criteria is possible. In order to do so the article examines the implementation of the Directive in Romanian law, the limitations that the CJEU has imposed on the interpretation of EU acts, the history of the enacting of the EU provisions at issue and the context of the provisions within the directive.
