Publication 845: Part VI
PART VI
REMEDIES
Article 13
Remedy Proportionate to Commercial Effect
(1) The remedies provided for the infringement of rights or for acts of unfair competition in a Member State, through use of a sign on the Internet in that Member State, shall be proportionate to the commercial effect of the use in that Member State.
(2) The competent authority shall balance the interests, rights and circumstances involved.
(3) The user of the sign shall, upon request, be given the opportunity to propose an effective remedy for consideration by the competent authority, prior to a decision on the merits of the case.
Article 14
Limitations of Use of a Sign on the Internet
(1) In determining remedies, the competent authority shall take into account limitations of use by imposing reasonable measures designed:
(i) to avoid a commercial effect in the Member State, or
(ii) to avoid infringement of the right or to avoid the act of unfair competition.
(2) The measures referred to in paragraph (1) may include, inter alia:
(a) a clear and unambiguous statement in conjunction with the use of the sign on the Internet, to the effect that the user has no relationship with the owner of the infringed right or the person affected by the act of unfair competition, written in the language or in the languages used in conjunction with the use of the sign on the Internet, and any other language indicated by the competent authority;
(b) a clear and unambiguous statement in conjunction with the use of the sign on the Internet to the effect that the user does not intend to deliver the goods or services offered to customers located in a particular Member State, written in the language or in the languages used in conjunction with the use of the sign on the Internet, and any other language indicated by the competent authority;
(c) an obligation to inquire, before the delivery of the goods or services, whether customers are located in that Member State, and to refuse delivery to customers who have indicated that they are located in that Member State;
(d) gateway web pages.
Article 15
Limitation on Prohibition to Use a Sign on the Internet
(1) Where the use of a sign on the Internet in a Member State infringes a right, or amounts to an act of unfair competition, under the laws of that Member State, the competent authority of the Member State should avoid, wherever possible, imposing a remedy that would have the effect of prohibiting any future use of the sign on the Internet.
(2) The competent authority shall not, in any case, impose a remedy that would prohibit future use of the sign on the Internet, where
(i) the user owns a right in the sign in another Member State, uses the sign with the consent of the owner of such a right, or is permitted to use the sign, in the manner in which it is being used on the Internet, under the law of another Member State to which the user has a close connection; and
(ii) any acquisition of a right in the sign, and any use of the sign, has not been in bad faith.
[Explanatory Notes follow]
