Competition Law and Policy in Japan and the EU

Competition Law and Policy in Japan and the EU

Etsuko Kameoka

This exciting new book embarks on a comparative analysis of competition law and policy in Japan and the EU. It provides a clear and carefully researched exposition of the differences between the relevant rules, systems and underlying ideas of the two jurisdictions, together with the relevant historical backgrounds.

Chapter 10: IP and competition

Etsuko Kameoka

Subjects: asian studies, asian law, law - academic, asian law, competition and antitrust law, european law


In the EU, the history of complex interaction among IP law, antitrust law and unfair competition law stems from the establishment of the European Community. When the Court of Justice asserted its doctrine of primacy of Community law, it implicitly raised the problem of how to reconcile intellectual property rights granted under national law with the concept of a Common Market with free cross-border trade. When addressing this problem the Court developed a distinction between the existence of intellectual property rights and the exercise of those rights. In the early 1960s, the Commission took the view that most provisions in patent licensing agreements did not breach Article 101(1) TFEU because restrictions of intra-brand competition were thought to emanate from the exclusive nature of the patent right. This approach was articulated in the Commissionís Notice on Patent Licensing Agreements, issued in late 1962. However, the Court of Justice overruled this approach in Consten and Grundig v Commission, where the assignment of trademark was at issue. In its famous judgment, the Court confirmed that vertical agreements can in some circumstances fall within the scope of Article 101(1) TFEU, and it made clear that the use of a trademark in order to prevent parallel imports flowing from one Member State into another can be incompatible with that provision.

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