LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre and Florentine Frias, Elvinger Hoss Prussen
the public or making available to the public of works, whose rights management informa - tion 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 represent - ing that information. • If a third party does not comply with the ban on circumventing any effective technological measure by a third party, knowingly. The pro - hibition provided for by the Authors’ Rights Law extends to the manufacturing, importa - tion, distribution, sale or lease of devices, products, components or services aiming at circumventing any effective technologi - cal measure. The Authors’ Rights Law also provides for exceptions in order to guarantee legitimate access to the works. “Technologi - cal measure” refers to any technology, device or component which, in the normal course of its operation, 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 protection objec - tive are defined as technological measures 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 Infringe- ment Lawsuits and Their Standards , the fol-
lowing 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 simi - lar; 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 confu - sion, as it gives the trade mark a special distinc - tive 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 pro - tection 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 similari - ties with the original work and not on the basis of differences. This factor was established by
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