As of 26 March 2020, the procedural deadlines for nearly all proceedings before Luxembourg courts have been suspended by a regulation dated 25 March 2020. This suspension of deadlines has been further clarified in amending regulations dated 1 April, 17 April and 29 April.

In administrative litigation, nearly all deadlines applicable to the filing of appeals and applications, and to the exchange of written pleadings, are suspended.

Nearly all procedural deadlines for civil and commercial matters are also suspended.

Deadlines to introduce legal proceedings before the courts of first instance that would normally have expired during this crisis period have been extended until after the end of the crisis. This extension of deadlines also applies to non-contentious appeals (recours gracieux) of decisions made by administrative authorities.

In urgent cases the tribunals may make an exception to this suspension of deadlines, if a party so requests.

Note, however, that lawyers must still respect the applicable deadlines for filing a notice of appearance.

In particular, the regulation of 1 April clearly indicates that the deadline applicable to filing for bankruptcy under Article 440 of the Commercial Code is suspended.

For more information, the applicable regulations are available here:

Your contacts for more details: Clara Mara-Marhuenda (clara.mara@arendt.com) and Marianne Rau (marianne.rau@arendt.com

(30/04/20)

Counterfeit face masks and medical supplies, patent infringement of ventilator valves, registration of trademarks relating to the coronavirus… The current health crisis is generating new intellectual property issues and headlines daily.

In this context, companies will need to ensure that their IP rights are well protected and remain enforceable during the COVID-19 outbreak.

Global IP offices respond to COVID-19

European IP offices will extend their deadlines for companies engaged in proceedings, procedural matters or filings with them. In relation to pending requests and procedures, the following primary measures have been taken:

  • The BOIP(1)
    Since 16 March, the BOIP has taken measures to prevent the spread of the coronavirus and has in particular extended deadlines in pending proceedings. In the DG Rule dated 11 May, it was announced that BOIP's working hypothesis is that the BAU date (for “business as usual”) will be 25 May. Therefore, provided that the situation does not deteriorate in the meantime, all new deadlines will apply in the usual way from 25 May. Practically speaking, all deadlines (including for payments) that expire or will expire between 16 March and 24 June inclusive will expire on 25 June 2020. All deadlines currently running that expire on or after 25 June remain unchanged.

  • The EUIPO(2)
    All deadlines expiring between 1 May 2020 and 17 May 2020 inclusive that affect all parties in proceedings before the Office are extended until 18 May 2020.0.

  • The EPO(3)
    All oral proceedings in examination and all opposition proceedings scheduled until 17 April 2020 have been postponed, unless they have been confirmed to take place by videoconference. If the disruption continues beyond 17 April 2020, the EPO may publish another notice.

  • WIPO(4): WIPO is continuing its operations, in particular under the Patent Cooperation Treaty (PCT), the Madrid System for the International Registration of Marks, and the Hague System for the International Registration of Industrial Designs. As regards international trademark matters, WIPO has indicated that users who fail to meet a time limit for a communication addressed to WIPO may be excused in certain instances. Unlike the other offices, users must provide sufficient evidence of the reason why WIPO should excuse the failure in question (official announcement, certificate from a qualified physician, etc.).

As the situation is constantly evolving, the above-mentioned dates and deadlines are likely to change. It is therefore advisable to check for updates from the IP offices themselves (you will find the relevant links below).

Your contacts for more details: Astrid Wagner (astrid.wagner@arendt.com) and Faustine Cachera (faustine.cachera@arendt.com)
(18/05/20)

Useful links:

(1) BOIP: Announcement of Business-As-Usual date (BAU date)
(2) EUIPO – Update and Decision No EX-20-4 of the Executive Director of the Office of 29 April 2020 concerning the extension of time limits
(3) EPO – Coronavirus (COVID-19) – Information is continually updated
(4) WIPO – COVID-19 Update: WIPO’s IP Services

The European Anti-Fraud Office (OLAF) recently opened an enquiry concerning imports of counterfeit products related to COVID-19 that are ineffective or even detrimental to health. Together with the national customs administrations, OLAF endeavours to prevent these dangerous counterfeit products from entering the EU.(1)

In the current context, IP owners may also wish to take enforcement actions against the unauthorised use of their IP by third parties. In particular, civil or criminal enforcement actions can be taken under Luxembourg law.

However, such actions may not have immediate effect, since the Luxembourg District Court (which is competent for IP infringement cases) has also taken measures in response to the disruption caused by COVID-19. Generally speaking, all deadlines have been suspended and most hearings have now been postponed.

Finally, the pandemic has already prompted a number of registrations for the trademarks "COVID-19" and "Coronavirus". Such registrations could be refused by IP offices on grounds relating to the descriptive nature and lack of distinctiveness of the trademark, and to compliance with public policy and morality. The BOIP has even issued a communication on this matter in particular.(2)

Your contacts for more details: Astrid Wagner (astrid.wagner@arendt.com) and Faustine Cachera (faustine.cachera@arendt.com)
(17/04/20)

Useful links:

(1) OLAF launches enquiry into fake COVID-19 related products
(2) BOIP: Registering a trademark relating to the corona virus

The Competition Council (Conseil de la concurrence) will generally enforce competition law as usual during the crisis. However, it has stated that it will show leniency towards temporary forms of coordination between competitors where the coordination is appropriate and necessary in order to avoid a shortage or to ensure security of supply for essential products (notably health products). To avoid falling foul of competition law, any such coordination will need to be clearly in the public interest, contribute to the interest or welfare of consumers, address critical issues that have arisen as a result of the current pandemic and not last longer than necessary to address these critical issues. Like all forms of intercompany coordination authorised under competition law, the cooperation must not go beyond what is strictly necessary to the legitimate objective concerned.

The Council has also stated that it will ensure that the prices of products or services that are essential to protect health of citizens are not artificially inflated by companies seeking to take advantage of the current situation. The Council has reminded manufacturers in this regard that they can combat excessive retail prices by setting maximum resale prices for its retailers.

Your contacts for more details: Philippe-Emmanuel Partsch (philippe-emmanuel.partsch@arendt.com)

Useful link: Lex Mundi - Covid-19 Global Competition Measures Report

(29/04/20)