LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre, Elvinger Hoss Prussen
1. Trade Mark and Copyright Law 1.1 Governing Law In Luxembourg, two systems apply for trade marks: • the EU trade marks system governed by Regula - tion (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the Euro - pean Union trade mark; and • the Benelux trade mark system governed by the Benelux Convention on Intellectual Property (Trade - marks and Designs) of 25 February 2005 (“Benelux Convention”), which establishes a regional trade mark for Luxembourg, Belgium and the Nether - lands. There is no Luxembourg trade mark. Only registered trade marks are recognised in Lux - embourg, except for trade marks that are well known within the meaning of Article 6bis of the Paris Conven - tion for the Protection of Industrial Property (“Paris Convention”) – namely non-registered trade marks that are renowned in the Benelux territory (“well- known trade marks”). Authors’ rights are governed in Luxembourg by the amended Law of 18 April 2001 on authors’ rights, related rights and databases (the “Authors’ Rights Law”). The law of 22 May 2009 transposed Direc - tive 2004/48/EC on the enforcement of intellectual property rights into Luxembourg law, and concerns both trade marks and authors’ rights (among other intellectual property rights). The law of 25 April 2018 transposed Directive 2014/26/EU on collective man - agement of copyright and related rights and multi- territorial licensing of rights in musical works for online use in the internal market into Luxembourg law. 1.2 Conventions and Treaties/Rights of Foreign IP Holders Luxembourg is a member of several conventions and treaties, including: • the Berne Convention for the Protection of Literary and Artistic Works; • the WIPO Copyright Treaty; • the Benelux Convention; • the Paris Convention; • the Trademark Law Treaty;
• the Singapore Treaty on the Law of Trademarks; • the Madrid Agreement Concerning the International Registration of Marks and the Protocol relating to the Madrid Agreement; • the Nice Agreement Concerning the International Classification of Goods and Services for the Pur - poses of the Registration of Marks (“Nice Classifi - cation”); and • the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks. Luxembourg is also a member of the World Trade Organization and has therefore been a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights since 1995. As a matter of principle, all foreign authors enjoy the rights guaranteed by the Authors’ Rights Law in Lux - embourg (in accordance with the fundamental princi - ple of national treatment enshrined in the Berne Con - vention). There are some specific provisions regarding the protection period and the artist’s resale rights. Only Benelux, EU or international trade marks desig - nating EU or Benelux are protected in Luxembourg. However, under certain conditions, owners of foreign trade marks may benefit in the Benelux from a right of priority (ie, the possibility to rely on an earlier date of filing in a country when applying for a trade mark in another country) provided for by the Paris Convention. 2. Trade Mark Ownership, Protection and Rights 2.1 Types of Trade Marks Benelux trade marks can be: • trade marks designating goods or services, filed by natural or legal persons; • collective trade marks – ie, trade marks filed by public entities or by associations that have the capacity in their own name to have rights and obligations, to make contracts or accomplish other legal acts, and to sue and be sued; or • certification trade marks – ie, trade marks capable of distinguishing goods or services that are certi - fied by the owner in respect of material, the mode of manufacture of goods or performance of servic -
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