LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre, Elvinger Hoss Prussen
Authors’ rights infringement is constituted when a third party uses the monopoly (ie, exclusive rights) granted to the authors’ rights-holder over an origi - nal work without any authorisation from the authors’ rights-holder, and no exception to authors’ rights may apply. An infringement of authors’ rights exists even if it was unintentional. Infringement occurs when the elements, or even a single element, that make up the originality of a work are reproduced in another work, even if there is no danger of confusion between the two works. Specific authors’ rights claims may also be brought before the criminal courts, as follows. • If a third party does not comply with the ban on removing or altering any rights management infor - mation in electronic form, or on the distributing, broadcasting, communicating to the public or mak - ing available to the public of works whose rights management information in electronic form has been removed or altered without authorisation and knowingly. “Rights management information” refers to any information provided by authors’ rights- holders that identifies the work, the author or any other right-holder but also, as the case may be, the terms and conditions of use of the work, and any number or code representing that information. • If a third party does not comply with the ban on circumventing any effective technological meas - ure by a third party, knowingly. The prohibition provided for by the Authors’ Rights Law extends to the manufacturing, importation, distribution, sale or lease of devices, products, components or services aiming at circumventing any effective technological measure. The Authors’ Rights Law also provides for exceptions in order to guarantee legitimate access to the works. “Technological measure” refers to any technology, device or com - ponent which, in the normal course of its opera - tion, is intended to prevent or limit, in relation to protected works (except computer programs), acts that are not authorised by the holder of authors’ rights. Access codes, encryption, scrambling and copy control mechanisms achieving their protec - tion objective are defined as technological meas - ures that are deemed effective.
The above-mentioned offences are sanctioned by criminal fines of between EUR251 and EUR250,000 if the offender is not acting for strictly private purposes. 7.3 Factors in Determining Infringement Trade Marks As indicated in 7.2 Legal Claims for Infringement Lawsuits and Their Standards , the following legal conditions must be met in order for infringement to be established: • the earlier trade mark and the subsequent sign must be identical or similar; • the goods and services covered by the trade mark and the sign must be identical or similar; and • the sign must have been used in the course of trade. Where the earlier trade mark and the subsequent sign and/or the goods and/or services at stake are only similar, the trade mark owner must also demonstrate a risk of confusion in the public’s mind. The factors taken into consideration by the courts are greatly inspired by EU case law. Therefore, the courts must globally assess the risk of confusion, and such assessment implies a certain interdependence between the factors taken into account. The reputation of the trade mark on the market is also a relevant factor in the likelihood of confusion, as it gives the trade mark a special distinctive character and offers it greater protection. Lastly, another element taken into consideration by the courts is the distinctive character of the trade mark, which influences the extent of protection to be granted. It is settled case law that the good faith of the infringer is irrelevant to the characterisation of the infringement. Authors’ Rights Infringement is assessed on the basis of similarities with the original work and not on the basis of differ - ences. This factor was established by case law. The absence of confusion between the original work and the copy or the price difference between them are
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