Access to Essential Innovation and Technology
Chapter 4: An existing solution? The judicial and regulatory interface between the three fields
There are decisions, in a range of jurisdictions, which explore the relation- ship between IP and human rights and between IP and competition. Firstly, human rights decisions will be explored, with these being split into two groups – those where human rights have led to a decision being reached which differed from that suggested by IP law alone, and those where it did not.1 Then decisions relating to refusal to license IP will be explored, followed by an introduction to the essential facilities doctrine, discussion of Euro-Defence decisions and finally of regulatory enquiries. The first prominent acknowledgement of the place of human rights in IP actions in England came in the decision in 2002 of Pumfrey J in Levi Strauss & Co v Tesco Stores Ltd. This case involved the importing of jeans bearing Levi’s trade marks, which had previously been put on the market outside the European Economic Area (EEA), without the trade mark owner’s consent to them being put on the market in the EEA. This is the complex field of parallel importing and involves the relationship between IP and free movement of goods and IP and competition, which was introduced in Chapter 3. Notwithstanding a developed body of case law suggesting that Tesco’s conduct constituted trade mark infringement, Tesco argued that the court should interpret the relevant UK and, as it was then, EC trade mark legislation as it related to free movement of goods, such that there was no infringement.
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