Equality of Arms in IP Enforcement: Reflections on the Conference

Reviewed conference

On 20-21 November 2025, Prof. Martin Stierle hosted a focused and highly engaged working conference at the University of Luxembourg entitled “Equality of Arms: Revisiting the IPR Enforcement Directive.” Held at the Weicker Building, the event brought together judges, practitioners, and academics from across Europe and beyond to reflect on twenty years of the Intellectual Property Rights Enforcement Directive and to consider whether the framework it established remains fit for purpose. Although the Directive was originally designed to harmonize enforcement standards and bolster the position of right holders, many of the discussions over the two days revealed tensions, gaps, and evolving challenges that now shape the enforcement landscape.

The conference was structured around four thematic panels – damages, unjustified enforcement, dynamic blocking injunctions and proportionality – each introduced by a leading academic and enriched by contributions from speakers with practical, judicial, and scholarly backgrounds. What unified the discussions was a shared concern with the question of “equality of arms”: whether the Directive still maintains a fair balance between right holders and alleged infringers, and whether its mechanisms can adequately accommodate the diversity of modern IP disputes.

Reassessing Damages: Divergent Practices and Persistent Challenges

The opening panel on damages set the tone for the conference by highlighting the persistent divergences in national calculation methods despite two decades of harmonization effort. The panelists – experienced judges with extensive backgrounds in patent, copyright and trademark litigation – provided comparative insights that underscored how differently Member States approach the same core concepts: the standard of care expected of infringers, the assessment of lost profits and the frequently contentious question of infringer’s profit.

Although the Directive offers broad guidelines, national interpretations vary widely. Some jurisdictions adopt more structured or formulaic approaches, while others rely more heavily on judicial discretion. Several panelists emphasized that these discrepancies can inadvertently shape litigation strategies, including forum selection, thereby undermining the goal of a level playing field. At the same time, the discussions also revealed that the perceived differences between national approaches can sometimes be overstated: while important divergences remain, particularly in methodology and the weight given to specific evidentiary factors, there are also striking similarities in how courts across Europe ultimately reason through and assess damages. This convergence suggests that practice on the ground is in some respects more aligned than often assumed.

The discussion on extraterritorial and springboard damages added another layer to the debate. Drawing on a U.S. perspective, the speaker outlined how American courts have expanded the scope of patent protection through concepts like springboard damages and certain forms of extraterritorial remedies. This comparative insight prompted a broader conversation about the situation in the EU. Several participants noted that, in contrast, IPRED provides only limited guidance on how to approach cross-border harm, even though global commercial realities increasingly require courts to grapple with precisely these issues. The resulting uncertainty raises questions about the adequacy of existing legal tools and about the degree to which EU law can or should reach beyond its territorial boundaries.

One concern raised during the panel was that such developments might ultimately lead EU courts to apply foreign, potentially even US law in certain circumstances, a prospect some viewed as problematic. Yet, it was also noted that the application of foreign law is in fact far from exceptional: courts all over the world, especially in Europe, already do so regularly, whether due to forum-selection clauses, territoriality principles, or the inherently cross-border nature of modern litigation. In practice, this has generally functioned smoothly, suggesting that the challenges, while real, may be more manageable than they first appear. The conversation around these questions was both technically rich and practically oriented, demonstrating the enduring complexity of the damages framework.

Unjustified Enforcement: Balancing Rights and Responsibilities

The second panel shifted from quantifying harm to examining situations in which enforcement itself may cause harm. The starting point was the Court of Justice’s recent case law, particularly the decision in Mylan AB, which was discussed by a judge of the Court. The presentation highlighted how EU jurisprudence conceptualizes unjustified enforcement, especially the conditions under which an unsuccessful enforcement action may give rise to a compensatory claim, and how this interacts with national procedural rules.

Academic contributors raised critical questions about the coherence of IPRED’s compensatory regime. While the Directive aims to prevent abusive litigation and to protect alleged infringers from disproportionate or bad faith enforcement, its practical effectiveness remains uncertain. Some speakers argued that the current framework leaves insufficient room for uniform remedies and sometimes fails to adequately compensate defendants who face litigation based on preliminary measures or allegations that ultimately prove unfounded. Others noted that the risk of liability for unjustified enforcement remains uneven across Member States, potentially influencing the willingness of right holders to pursue legitimate claims.

The ensuing discussion was particularly lively, touching on themes of fairness, procedural safeguards and the need – or lack thereof – for further harmonization. Many participants expressed the view that greater clarity in this area could help balance incentives for right holders while ensuring meaningful recourse for those wrongly targeted by enforcement actions.

Dynamic Blocking Injunctions: Innovation and Uncertainty

The first panel of the second day addressed one of the most rapidly evolving enforcement tools: dynamic blocking injunctions. These measures, typically used in the context of online copyright infringement, adapt to changing circumstances by allowing rights holders to block newly identified infringing domains without initiating fresh proceedings. While increasingly common across the EU, they continue to raise significant doctrinal and technical questions.

Speakers from practice, academia and the judiciary offered complementary perspectives. From a practitioner’s standpoint, dynamic injunctions are essential to the fight against large-scale and fast-moving online infringement. Yet, they also create practical burdens for intermediaries, who must implement blocking measures accurately and efficiently. From an academic point of view, the legal justification and limits of these injunctions remain contested, particularly in light of fundamental rights and proportionality concerns. The judicial viewpoint added further nuance by highlighting how different courts have developed distinct approaches to monitoring, updating and reviewing such orders, drawing on the perspective of courts in England and Wales.

Another expert contribution examined Article 11 of IPRED and the broader question of “secondary liability”, a concept that, though central to online enforcement, remains undertheorized in the Directive itself. This prompted a wide-ranging discussion about the extent to which IPRED needs modernization to reflect the realities of digital enforcement and the roles of intermediaries. The debate made clear that dynamic injunctions are not merely technical procedural tools but sit at the intersection of enforcement, fundamental rights and innovation.

Proportionality: A Unifying Principle in Need of Clarification

The final panel turned to proportionality, a theme that ran implicitly throughout the entire conference. The speakers explored how EU courts apply proportionality in copyright, trademark and patent contexts, and how these interpretations influence both national jurisprudence and the broader enforcement framework.

A judge of the CJEU provided insights into how proportionality operates as a constraint on enforcement measures, particularly where rights collide with privacy interests, freedom of expression, or economic freedoms. Academic contributors questioned whether the Directive offers sufficient guidance for national courts – especially in the patent context, where debates about injunctions and the structure of remedies are intensified. The panel also touched on the particular complexities of proportionality in the field of standard-essential patents, including whether factors such as the presence of complex, multi-component products should shape the proportionality assessment. These considerations highlighted some points of contention between rights holders and implementers, for whom the practical implications of proportionality may diverge significantly.

A further point discussed was the more recent amendment of § 139 of the German Patent Act, which explicitly introduced a proportionality test for patent injunctions. It was seen as evidence that national legislators are increasingly engaging with the proportionality requirement. Yet, it was also noted that, in practice, the proportionality exception under German law has so far been invoked and applied quite sparingly, illustrating both the potential and the limitations of legislative intervention in this area.

One speaker proposed that the approach taken in the Trade Secrets Directive could serve as a model for a more flexible and holistic proportionality assessment in a future reform of IPRED.

The panel’s final discussion revealed a shared conviction that proportionality is not merely a doctrinal principle of EU law but a necessary mechanism for safeguarding equality of arms in IP enforcement. Yet, its application remains inconsistent, leaving significant room for judicial interpretation and, potentially, legislative refinement.

Concluding Reflections

Across both days, the conference succeeded in fostering open, constructive, and intellectually rigorous exchanges. What emerged from these discussions was a sense that IPRED, while foundational, no longer fully reflects the complexities of contemporary IP enforcement. Divergent national practices, evolving digital realities, and new forms of cross-border harm all challenge the Directive’s original balance.

At the same time, the conversations demonstrated the continued value of a European forum where judges, practitioners, and scholars can confront these issues collectively. The question of “equality of arms” remains central as a guiding principle of procedural fairness and as a benchmark for evaluating the effectiveness and legitimacy of enforcement mechanisms. Whether future reforms will strengthen, refine, or fundamentally rethink IPRED, the debates initiated during the conference will undoubtedly contribute to this ongoing reassessment.

• Find out more about the Doctoral Training Unit GREITMA