Research Handbook on Intellectual Property and Competition Law
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Research Handbook on Intellectual Property and Competition Law

Edited by Josef Drexl

This comprehensive Handbook brings together contributions from American, Canadian, European, and Japanese writers to better explore the interface between competition and intellectual property law. Issues range from the fundamental to the specific, each considered from the angle of cartels, dominant positions, and mergers. Topics covered include, among others, technology licensing, the doctrine of exhaustion, network industries, innovation, patents, and copyright.
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Chapter 16: Intellectual Property, the Internal Market and Competition Law

Stefan Enchelmaier


Stefan Enchelmaier 1 Introduction Intellectual property, the internal market and the Community’s competition law are intertwined in several respects. The European Court of Justice’s first judgment on competition law, Consten and Grundig,1 is a case in point. The distribution agreement there at issue purported to grant Grundig’s exclusive distributor in France, Consten, complete protection against parallel imports from other Member States (also called ‘absolute territorial protection’). This was to be achieved by means of a trade mark assigned exclusively to the distributor. The Court therefore had to clarify the relationship between competition law (which was touched on by the exclusive distribution agreement), the internal market (the prevention of all non-authorized imports into France), and intellectual property law (the trademark employed to that end). This connection between the three elements is reflected in the very wording of the EC Treaty. Article 2 EC says that the aims of the Community (a harmonious, balanced, and sustainable development of economic activities and so on) shall be achieved by establishing, among other things, a ‘common market’. This end is served, according to Article 3(1) EC, by ‘an internal market characterized by the abolition, as between Member States, of obstacles to the free movement of goods [and] services’ (letter (c)), and by ‘a system ensuring that competition in the internal market is not distorted’ (letter (g)). The provisions implementing these general stipulations in the Treaty are Articles 282 and 49 for the free movement of goods and the freedom to provide services, on...

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