"With friends like that ...": amicus briefs in Europe

Friends: do judges need them
more than anyone else?

Yesterday's "Ask the Trade Mark Judges" session, hosted by UCL's Institute of Brand and Innovation Law (IBIL) as a joint event which it shared with MARQUES, was a stimulating affair in which the panelists demonstrated quite how lively judges can be if they have had a good sleep after lunch if they have been asked the right questions and if there is no risk of their answers being the subject of an appeal.  The judges on offer were Sir Konrad Schiemann (Court of Justice of the European Union), Lord Justice Kitchin (Court of Appeal, England and Wales), Daniel Alexander QC (an Appointed Person to hear trade mark appeals against people like) Allan James (Senior Hearing Officer, UK Intellectual Property Office).  Deftly marshalled by chairman Sir Robin Jacob, the judges were a good deal funnier, more informative and succinct than a perusal of some of their grimmer judgments might suggest.

The IPKat was well represented at this event, and a fuller report will follow in due course.  This post is dedicated to one small point in which this blogger takes a personal interest, since it relates to a question put to the panel by himself: what do the judges think about amicus curiae briefs in trade mark litigation?

In the United States, amicus briefs are almost a way of life in IP litigation, or at the very least a flourishing cottage industry within the sector.  The International Trademark Association (INTA) has an active amicus team and, as its website indicates,

INTA provides expertise in trademark law to courts around the world through amicus briefs and other filings. INTA briefs are drafted by the Association's International Amicus Committee and approved for filing by the Executive Committee or Board of Directors.

A swift count-up suggests that INTA has submitted 51 amicus briefs since 2000, of which around half were for the attention of courts in North America. 10 were submitted to the Court of Justice of the European Union and one to that rarest of IP tribunals, the EFTA Court.

But INTA is not alone.  MARQUES too has an amicus team.  While it is of more recent provenance than that of the INTA, this team has been submitting briefs and, in one instance, furnishing survey evidence, in both Court of Justice and national cases.

What did the panelists think? From the Court of Justice, Sir Konrad Schiemann was quite blunt: there was no provision in that court's rules for the submission of amicus briefs and it was not in the hands of the court to change those rules: nor should they be welcomed since their inevitable effect would be to make cases take longer [this Kat notes that, in at least one recent case, the Advocate General has treated a submission from a United Nations agency as "an unofficial amicus curiae brief : Case C-31/09 Bolbol.  In Joined Cases C-466/09 Philips/Nokia the Advocate General refers to the INTA's submissions but does not clarify their legal status. In its judgment the Court describes INTA as an "intervener", suggesting that it has the status of a party].  Sir Konrad later observed that, in proceedings before his court on a reference from a national court which did admit amicus briefs, the content of such briefs would automatically form part of the corpus of relevant materials on which his court would focus when reaching its decision.

Sir David Kitchin took a different line: if amicus briefs are admitted, he suggested, this should be done at first instance.  If this does not happen, the appellate court in receipt of such a brief may be effectively deciding the case de novo.  If this is so, then it should be possible for the other side to submit its own material in response, in order to level out the uneven playing field.

Daniel Alexander was quite well-disposed towards amicus briefs in IP litigation, particularly where the court consists of a panel of non-specialists [of which the Court of Justice of the European Union, Merpel notes without any disrespect, is the paradigm]. In particular, where a panel of non-specialists is required to give a ruling which may have far-reaching consquences, it may be good for its members to know the consequences of their decision. While the European Commission and Member States often make submissions to the Court, this may not entirely cover the range of issues that an amicus brief might raise.

This Kat ventures to suggest that amicus briefs should be welcome in Europe, but on the following terms: (i) they should be introduced as early as possible in the proceedings, so that they can be studied carefully and, if necessary, made the subject of amicus briefs to contrary effect; (ii) to the extent that they purport to speak on behalf of the public at large or a general public interest, they should be made fully available to the public and (iii) as a matter of common sense rather than legal policy they should be deployed as sparingly as possible since, the fewer they are in number, the greater is likely to be their individual impact: the judges already have enough to read and should not be unncessarily burdened.