Intellectual, industrial and commercial property
Intellectual property includes all exclusive rights to intellectual creations. It encompasses two types of rights: industrial property, which includes inventions (patents), trademarks, industrial designs and models and designations of origin, and copyright, which includes artistic and literary property. Since the entry into force of the Treaty on the Functioning of the European Union (TFEU) in 2009, the EU has had explicit competence for intellectual property rights (Article 118).
Legal basis
Articles 114 and 118 TFEU.
Objectives
Although governed by different international and national laws, intellectual property rights (IPR) are also subject to EU legislation. Article 118 TFEU provides that in the context of the establishment and functioning of the single market, Parliament and the Council, acting in accordance with the ordinary legislative procedure, establish measures for the creation of EU intellectual property law in order to provide uniform protection of IPR throughout the EU, and for the setting-up of centralised, EU-wide authorisation, coordination and supervision arrangements. The legislative activity of the EU consists chiefly of harmonising certain specific aspects of IPR through the creation of its own system, as is the case for the EU trademark and design, and, since 2023, also for patents. Many of the EU instruments reflect the Member States’ international obligations under the Berne and Rome Conventions, as well as under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the 1996 World Intellectual Property Organization (WIPO) international Treaties.
Achievements
A. Legislative harmonisation
1. Trademarks, designs and models
In the EU, the legal framework for trademarks is based on a four-tier system for trademark registration, which coexists with national trademark systems harmonised by means of the Trademark Directive (Directive (EU) 2015/2436 of 16 December 2015 to approximate the laws of the Member States relating to trademarks). In addition to the national route, possible routes to trademark protection in the EU are the Benelux route, the EU trademark, introduced in 1994, and the international route. Regulation (EU) 2017/1001 of 14 June 2017 on the European Union trademark (the EU Trademark Regulation) codifies and replaces all earlier EC regulations on the EU trademark. The codification was carried out in the interest of clarity, given that the EU trademark system had already been substantially amended several times. The EU trademark has a unitary character and equal effect throughout the EU. The European Union Intellectual Property Office (EUIPO) is responsible for managing the EU trademark and design. The EU Trademark Regulation also sets the fee amounts payable to EUIPO. They are fixed at a level which ensures that the revenue they produce covers EUIPO’s expenses and that they complement the existing national trademark systems.
Council Regulation (EC) No 6/2002 of 12 December 2001 (amended) instituted a Community system for the protection of designs and models. In recent years, the EU has modernised its design framework through the 2024 EU design legislative reform package, revising legislation in order to strengthen and harmonise design protection that benefits independent designers, small and medium-sized enterprises (SMEs) and industries where designs play a major role. The EU Design Regulation (Regulation (EU) 2024/2822) entered into force on 1 May 2025 and aims to ensure that the design protection system is adapted to the digital age, expanding the concepts and definitions to make them more applicable to current and future circumstances. It seeks to improve the accessibility, effectiveness and affordability of the design protection systems, by simplifying procedures for SMEs and design-intensive industries and optimising the level and structure of fees payable.
The Design Directive (Directive (EU) 2024/2823) aims to ensure that the design protection system is adapted to the digital age (in particular to the emergence of 3D printers) and becomes significantly more accessible and effective, by lowering costs, simplifying procedures, making them faster and more predictable, and increasing legal certainty. Member States are obliged to transpose the Design Directive into their national legal systems by 9 December 2027.
Council Decision 2006/954/EC and Council Regulation (EC) No 1891/2006, both of 18 December 2006, linked the EU system for the registration of designs or models to the international registration system for industrial designs and models of WIPO.
2. Copyright and related rights
Copyright ensures that authors, composers, artists, filmmakers and others receive payment and protection for their work. Digital technologies have profoundly changed the way that creative content is produced, distributed and accessed. EU copyright legislation consists of 13 directives and two regulations which, together, harmonise the essential rights of authors, performers, producers and broadcasters. By setting some EU standards, national discrepancies are reduced, a level of protection required to foster creativity and investment in creativity is ensured, cultural diversity is promoted and access for consumers and businesses to digital content and services across the single market is facilitated.
a. Copyright
The EU Copyright Directive (Directive (EU) 2019/790) of 17 April 2019 provides for harmonised copyright legislation across the EU for consumers, creators and companies. It grants an ancillary copyright for press publishers and fair remuneration for copyrighted content. So far, online platforms have had no legal responsibility for using and uploading copyrighted content on their sites. The new requirements will not affect the non-commercial upload of copyrighted works to online encyclopedias such as Wikipedia. Directive (EU) 2019/789 (the CabSat Directive) aims to increase the number of TV and radio programmes available online to EU consumers. The directive introduces the country of origin principle to facilitate the licensing of rights for certain programmes that broadcasters offer on their online platforms (e.g. simulcasting and catch-up services). Broadcasters have to obtain copyright permissions in their EU country of establishment (i.e. country of origin) in order to make radio programmes, television news and current affairs programmes, and fully financed own productions available online in all EU countries.
A directive on access to books and print material (Directive (EU) 2017/1564 of 13 September 2017) permits uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled, in appropriate formats.
A regulation on cross-border portability of online content services (Regulation (EU) 2017/1128 of 14 June 2017) aims to ensure that consumers who buy or subscribe to films, sports broadcasts, music, e-books and games can access them when they travel to other EU Member States.
b. Term of protection of copyright and related rights
These rights are protected for life and for 70 years after the death of the author/creator. The 2011 directive on the term of copyright protection (Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights) extended the term of copyright protection for performers of sound recordings from 50 to 70 years after recording, and for authors of music, such as composers and lyricists, to 70 years after the author’s death. The term of 70 years has become an international standard for the protection of sound recordings. Currently 64 countries around the world protect sound recordings for 70 years or longer.
c. Computer programs and databases
A directive on the legal protection of computer programs (Directive 2009/24/EC) requires Member States to protect computer programs, by copyright, as literary works under the Berne Convention for the Protection of Literary and Artistic Works. Directive 96/9/EC (the Database Directive) provides for the legal protection of databases, defining a database as ‘a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’. The directive stipulates that databases are protected both by copyright, which covers intellectual creation, and by a sui generis right protecting investment (of money, human resources, effort and energy) in obtaining, verifying or presenting content.
The Data Act (Regulation (EU) 2023/2854 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828) aims to establish rules on sharing data generated by the use of connected products or related services (e.g. Internet of Things, industrial machines). It requires the disclosure and publication of data that may be protected by the data holder’s or a third party’s trade secrets, copyright or other IPR, and allows users to access the data they generate. It provides for new rules specifying who can access and use data generated within the EU across all economic sectors.
On 30 May 2022, Parliament and the Council adopted the Data Governance Act (Regulation (EU) 2022/868 on European data governance and amending Regulation (EU) 2018/1724) which introduces mechanisms to facilitate the reuse of certain categories of protected public sector data, increase trust in data intermediation services and foster data altruism across the EU.
The proposed ‘Omnibus VII’ bill is a package law designed to simplify and consolidate various EU digital regulations, such as the Data Act and the Data Governance Act. One of the key points of the Digital Omnibus regulation, proposed by the Commission on 19 November 2025, is the harmonisation of interfaces with the Data Act and the Data Governance Act. The aim of this revision is to create a consistent foundation for the European data economy that combines data protection and innovation. It aims to reduce complexity by consolidating rules and standardising terminology.
d. Rental and lending rights
Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property (the Rental and Lending Directive) of 12 December 2006 was the first EU legislative instrument dealing with authors’ rights and adopting a horizontal approach. It introduces an unwaivable right to remuneration, as the creative and artistic work of authors and performers requires an adequate income as a basis for further creative and artistic work, and investments needed for the production of phonograms and films are especially high.
e. Collecting societies
A licence must be obtained from the different holders of copyright and related rights before content protected by such rights may be disseminated. Rights holders may entrust their rights to a collecting society, which manages those rights on their behalf. Unless a collective management organisation has justified reasons to refuse management, it is obliged to manage these rights. A directive on the collective management of copyright (Directive 2014/26/EU on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market) lays down requirements for collective management organisations, with a view to ensuring high standards of governance, financial management, transparency and reporting. It aims to ensure that rights holders have a say in the management of their rights and envisages a better functioning of collective management organisations by means of EU-wide standards. Member States must ensure that collective management organisations act in the best interests of the rights holders whose rights they represent.
3. Patents
A patent is a legal title that can be granted to any invention having a technical character, provided that it is new, involves an inventive step and could have an industrial application. A patent gives the owner the right to prevent others from making, using or selling an invention without permission. Patents encourage companies to make the necessary investment in innovation and provide an incentive for individuals and companies to devote resources to research and development. In Europe, technical inventions can be protected either by national patents granted by the competent national authorities, or by European patents granted centrally by the European Patent Office. The latter is the executive branch of the European Patent Organisation, which now has 39 contracting states. The EU itself is not a member of this organisation.
After years of discussions among the Member States, Parliament and the Council approved the legal basis for a European patent with unitary effect (unitary patent) in 2012. An international agreement between the Member States thus set up a single and specialised patent jurisdiction.
The Court of Justice of the European Union’s (CJEU) confirmation of the patent package in its judgment of 5 May 2015 in cases C-146/13 and C-147/13 cleared the way for a truly European patent.
Since entering into force on 1 June 2023, the EU unitary patent, which is granted by the European Patent Office, has provided uniform protection with equal effect in all participating EU countries. Businesses have the option of protecting their inventions in all EU Member States with a true EU patent. They are also able to challenge and defend unitary patents in a single court action through the newly created Unified Patent Court (UPC). This streamlines the system and saves on translation costs. The UPC Agreement (UPCA) provides that the primacy of EU law must be respected (Article 20 UPCA) and that the decisions of the CJEU are binding on the UPC. The UPC is a court that is currently common to 18 EU Member States. It is made up of a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance has a decentralised structure and comprises a central division in Paris with a section in Munich and Milan, as well as a regional and various local divisions all over Europe. The Court of Appeal has its seat in Luxembourg and decides on appeals against decisions of the Court of First Instance and on requests for the rehearing of final decisions of the Court. Any panel of the Court of Appeal sits in a multinational composition of three legally qualified judges and two technically qualified judges with qualifications and experience in the field of the technology concerned, in accordance with Article 9(1) UPCA.
4. Trade secrets
The practice of keeping business information (know-how) confidential goes back centuries. Legal instruments to protect trade secrets, whether or not defined as part of IPR, exist in many countries. The level of protection afforded to confidential information cannot be compared to other areas of intellectual property law such as patents, copyrights and trademarks, but can, in principle, apply indefinitely, rather than for a limited period only. The protection of trade secrets varies more from country to country than other areas of IPR law, and can be even more advantageous and cheaper than seeking formal patent protection. In 2016, a directive on the protection of trade secrets was adopted, namely Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.
5. IPR for plant varieties
Plant variety protection, also called the ‘plant breeder’s right’, is a form of IPR granted to the breeder of a new plant variety. The EU’s system of protection for plant varieties, based on the principles of the 1991 International Convention for the Protection of New Varieties of Plants, contributes to the development of agriculture and horticulture. A system for the protection of plant variety rights was established by EU legislation. The system allows IPR to be granted for plant varieties. The Community Plant Variety Office implements and applies this scheme.
6. Geographical indications (GIs)
Under the EU’s agricultural IPR system, names of products registered as having a geographical indication (GI) are legally protected against imitation and misuse within the EU and in non-EU countries with which a specific protection agreement has been signed. Product names can be granted a GI if they have a specific link to the place where the product is made. This recognition enables consumers to trust and distinguish quality products while also helping producers to market their products better. Recognised as intellectual property, GIs are playing an increasingly important role in trade negotiations between the EU and other countries. For example, the United States remains concerned by the EU’s protection of GIs, which impacts both the protection of US trademarks and market access for US products that use common names in the EU and third-country markets[1]. A regulation on GIs for alcoholic and agricultural products (Regulation (EU) 2024/1143 of 11 April 2024 on geographical indications for wine, spirit drinks and agricultural products, as well as traditional specialities guaranteed and optional quality terms for agricultural products), identifies products that have qualities, characteristics or a reputation due to natural and human factors linked to their place of origin. Products that are under consideration or that have been granted GI recognition are listed in GI registers. A similar regulation on GI protection for craft and industrial products was adopted on 18 October 2023: Regulation (EU) 2023/2411. It gives GIs for industrial products that can be associated with their geographical area of production (such as Albacete knives, Bohemian glass and Limoges porcelain) protection similar to that given to regionally produced food or beverages.
At international level, the Council decision on the EU’s accession to the Geneva Act (Council Decision (EU) 2019/1754 of 7 October 2019 on the accession of the European Union to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications) designates EUIPO as the competent authority in relation to geographical indications. The United States remains very concerned by the outcome of the 2015 WIPO negotiations to expand the Lisbon Agreement for the Protection of Appellations of Origin[2].
7. Combating counterfeiting
According to estimates, imports of counterfeit and pirated goods into the EU amount to approximately EUR 85 billion (up to 5% of total imports). Worldwide, trade in pirated goods accounts for as much as 2.5% of trade and is worth up to EUR 338 billion, which causes significant damage to rights holders, governments and economies.
As differences in national systems for penalising counterfeiting and piracy were making it difficult for Member States to combat those offences effectively, Parliament and the Council adopted a directive on the enforcement of IPR (Directive 2004/48/EC) as a first step. It aims to step up the fight against piracy and counterfeiting by approximating national legislative systems to ensure a high, equivalent and homogeneous level of intellectual property protection in the single market and provides for measures, procedures and compensation under civil and administrative law. A regulation on customs enforcement of IPR (Regulation (EU) No 608/2013) provides procedural rules for customs authorities to enforce IPR with regard to goods liable to customs supervision or customs checks.
B. Concept of the ‘exhaustion’ of rights
1. Definition
This legal concept or doctrine applying to all fields of industrial property means that after a product covered by an IPR (e.g. a patent) has been sold by the IPR holder or by others with the consent of the owner, the IPR is said to be exhausted. In the EU, the CJEU has always interpreted the EU Treaties as meaning that rights conferred by IPR are exhausted within the single market by virtue of putting the relevant goods on the market (by the rights holder or with their consent). The proprietor of an industrial or commercial IPR protected by the law of one Member State cannot invoke that law to prevent the importation of products which have been put into circulation in another Member State.
2. Limits
‘Exhaustion’ of EU rights does not apply in the case of the marketing of a counterfeit product, or of products marketed outside the European Economic Area (Article 6 of the TRIPS Agreement). In 1999, the CJEU ruled, in its judgment in Sebago Inc. and Ancienne Maison Dubois et Fils SA v GB-Unic SA (C-173/98), that Member States may not ‘provide in their domestic law for exhaustion of the rights conferred by the trademark in respect of products put on the market in non-member countries’.
3. Legal acts in this area
EU rules on exhaustion are largely the result of the jurisprudence of the CJEU interpreting Article 34 TFEU on measures having equivalent effect to quantitative restrictions between Member States[3]. This jurisprudence is reflected in each of the relevant pieces of EU law relating to IPR.
C. Recent case-law of the CJEU
In 2012, the CJEU confirmed in the judgment in the SAS case (C-406/10) that, in accordance with Directive 91/250/EEC, only the expression of a computer program is protected by copyright and that ideas and principles which underlie its logic, algorithms and programming languages are not protected under that directive (paragraph 32 of the judgment). It stressed that neither the functionality of a computer program nor the programming language and format of data files used in a computer program in order to exploit certain of its functions constitutes a form of expression of that program for the purposes of Article 1(2) of Directive 91/250/EEC (paragraph 39).
In its judgment in Case C-160/15 (GS Media BV v Sanoma Media Netherlands BV and Others), the CJEU declared that the posting on a website of a hyperlink to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without the knowledge that those works have been published illegally.
In its judgment in Case C-484/14 of 15 September 2016, the CJEU held that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under Directive 2000/31/EC, and confirms that, under certain conditions, a service provider who provides access to a communication network may not be held liable. Consequently, copyright holders are not entitled to claim compensation on the grounds that the network was used by third parties to infringe their rights. Securing the internet connection by means of a password ensures a balance between, on the one hand, the IPR of rights holders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users.
In its judgment of 8 September 2020 in Case C-265/19 (Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd and Others), the CJEU held that a Member State may not deny performing artists from third countries outside the European Economic Area the right to remuneration by invoking the reciprocity clause of the WIPO Treaty. All sound recording producers and performers from contracting parties to the WIPO Performances and Phonograms Treaty are entitled to equitable remuneration. In response to the CJEU’s judgment, the Commission, on 11 September 2023, opened a consultation on the conditions for remuneration of music performers and record producers from non-EU countries for recorded music played in the EU because of US stakeholder concerns about EU Member States withholding royalties from US producers and performers.
Role of the European Parliament
Intellectual property creates added value for EU businesses and economies. Its uniform protection and the enforcement thereof contribute to the promotion of innovation and economic growth. Parliament is therefore committed to trying to harmonise IPR through the creation of a single EU system in parallel with national systems, as is the case with the EU trademark and design and the European unitary patent.
In various resolutions on IPR, and particularly on the legal protection of databases, biotechnological inventions and copyright, Parliament has argued for the gradual harmonisation of such rights. It has also opposed the patenting of parts of the human body. On 27 February 2014, Parliament adopted an own-initiative resolution on private copying levies (the right to make private copies of legally acquired content), as digital private copying has taken on major economic importance as a result of technological progress. Parliament also played a very active role in the drafting of the WIPO treaty on copyright exceptions for the visually impaired (the Marrakesh Treaty).
During the overhaul of EU copyright rules (see Section A(2)(a)), there was a heated public debate focused on Articles 11 and 13 of the draft directive on copyright in the digital single market. This debate culminated in a vote in Parliament backing efforts to create a new right for media publishers to monetise content on certain big news platforms and a new right making it easier to track copyright infringements on the internet. While the creative industry rejoiced, tech company representatives severely criticised the proposals. In the end, Parliament’s vote once again set the tone for the adoption of the EU Copyright Directive.
Research prepared for Parliament’s Committee on Legal Affairs indicates that artificial intelligence (AI) defies new frontiers of copyright protection, in particular with regard to the undisclosed training of AI on copyrighted material or protected data and the subsequent generation of content by this AI[4]. The Policy Department for Justice, Civil Liberties and Institutional Affairs organised a specialised workshop on generative AI and copyright to support the work of Parliament’s Committee on Legal Affairs in this area[5]. In addition, a number of contractual arrangements facilitate the washing away of IPR from data or allow subjects’ IPR to be taken over, on the basis that publication occurred on a particular platform or that creation/invention occurred within the framework of a service contract. Such arrangements include:
- Legal arrangements that deprive creators of IPR or force them to give away non-remunerated licences with respect to content placed on digital platforms’ services and servers, and/or that transfer such rights to the platforms;
- Buy-out contracts through which platforms take over creators’ IPR;
- Legal arrangements that deprive employees, inventors or creators of IPR with respect to content created in the course of their employment or service, and/or that transfer such rights to the employer (‘work for hire’)[6].
JAGODA KAROLINA MACIEJEWSKA / Udo Bux / Mariusz Maciejewski