Edited by Josef Drexl
Chapter 17: The Exhaustion/Competition Interface in EC Law – Is There Room for a Holistic Approach?
Ole-Andreas Rognstad 1 Introduction In European Community law, there are two main instruments for preventing territorial partitioning of markets for goods and services protected by intellectual property rights (IPRs). The first of these is the exhaustion principle (or first-sale doctrine), which was developed by the European Court of Justice (ECJ) during the early 1970s on the basis of the rules on free movement of goods under Articles 30 and 36 of the EEC Treaty (now Articles 28 and 30 EC). Today the principle also finds its legal basis in various Community directives and regulations in the field of IPR.1 The second instrument is competition law, as the concept is understood under Articles 81 and 82 EC and the case law interpreting these provisions. Generally speaking, the exhaustion principle states that once a product is put on the market in the European Community (or, by way of the EEA Agreement, the European Economic Area, including Norway, Iceland and Liechtenstein in addition to the EC countries) with the consent of the right-holder, the IPRs in For trade marks, see Article 7 First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, OJ 1989 No. L 40, p. 1, and Article 13 Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community trade mark, OJ 1994 No. L 11, p. 1; for computer programs, see Article 4(c) Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer...
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