The Constitutionalization of the European Legal Order : Impact of Human Rights on Intellectual Property in the EU

No doubt, fundamental rights now occupy a greater role than before in the argumentation of the Court of Justice of the European Union (henceforth the CJEU). This conclusion applies generally and in the particular instance of intellectual property (henceforth IP) litigation. Yet whether this development should in the IP contexts be applauded or critiqued – or perhaps both – is less evident.This chapter concentrates on EU law, and the IP-fundamental rights case law of the CJEU, in particular. It seeks to evaluate the impact fundamental rights have had on IP cases and doctrine. It will also discuss some of the risks that increasing references to fundamental rights produce. The chapter argues that although fundamental rights could be used to control some of the excesses of IP protection and enforcement, such a limiting function is not visible in EU case law. Instead, references to fundamental rights have often strengthened already strong IP protection and led to new problems