Chapter 10: IP and competition
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.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.