Resumen de The calculation of damages in EU intellectual property law. An assessment of the harmonisation approach used in article 13(1) of Directive 2004/48/EC on the enforcement of IPRs
The claim for compensation is a key tool in any legal system. Due to their ubiquitous nature, the calculation of damages for the infringement of intellectual property rights exhibits significant peculiarities. In its essence, the formula underlying the "dreifache Schadensberechnung" is prevalent in Europe for a long time. However, the manner of applying it has constantly been discussed in practice. In 2004, the European legislator has adopted the Directive 2004/48/EC on the enforcement of intellectual property rights. Its Article 13 provides requirements for determining the amount of damages. Even though a core objective was to ensure a high, equivalent and homogeneous level of IP protection in the Internal Market, there are still significant disparities in the Member States with respect to damage calculation. In a European law perspective, the thesis examines the extent to which the minimum harmonization foreseen in the Directive is adequate to achieve the objectives of IP Protection and the Internal Market. It in particular addresses the crucial question of how the harmonization approach affects free cross-border trade, the undistorted competition and the promotion of innovation today, considering the technical and economic changes in recent years and the further development of IP law at EU level.
