Although the judicial system under the EUTMR appears to be working well, the lack of a genuine EU judiciary means that infringement proceedings tend to focus on individual territories. This tendency is enhanced inter alia by enforcement of EUTMs together with national rights or complexities resulting from private international law. In order to appraise the functioning of the judicial system and, if needed, propose ways optimize it, an empirical data analysis was deployed in the framework of an interdisciplinary study. As empirical foundation, data were adduced from a large set of cases available in the EUIPO Case Law and the private Darts-IP, WestLaw databases. A main objective is to provide a quantitative picture of current litigation in order to analyse infringement proceedings systematically. Real data were therefore compiled, inter alia, on choice of venue, parallel invocation of EUTMs and national rights, claims and means of defenses, applicable law, type and territorial scope of sanctions, coercive measures regimes or periodic penalty payments. Ultimately the question posed is whether the current system should be transformed into a single EU judiciary possibly modeled on the envisaged Unified Patent Court. The data were coded into a special questionnaire and the novel comprehensive dataset constructed was processed through an appropriate statistics program.
Interim results show, inter alia, that the majority of lawsuits on EUTM infringements have domestic character, with both parties being resident in the Member State where the lawsuit is brought. Moreover, in almost half of cases both EUTMs and national trademarks or other national rights form the basis of claims. Furthermore, in most cases, the plaintiff does not specify the territorial breadth of sanctions claimed (most often: prohibitory injunctions), which means that by default (and depending on other factors) the judgement has union-wide effects, while courts rather seem to limit themselves to the forum state. Further findings show consumer perceptions in other Member States are taken into account for assessment of likelihood of confusion or reputation, but only if specific evidence is provided in the procedures. Further results leading to final conclusions and proposals remain to be derived from the dataset.
