Exploring Use of the Same Mark by Multiple Undertakings
Edited by IIanah Simon Fhima
Chapter 11: Splitting Trade Marks and the Competition Laws
Thomas Hays 1. INTRODUCTION Intellectual property rights are, by definition, legal monopolies. Their value is in their monopolistic qualities, allowing the owners to prevent others from exploiting the same inventions, creations and brands. This is to say that the value of intellectual property rights lies in the ability they give their owners to minimize competition and, therefore, to extract higher prices for the goods and services protected by those rights. Monopolies, in general, are countercompetitive. This places intellectual property rights potentially in conflict with the competition law provisions of the Treaty of Rome,1 specifically with Articles 81 and 82,2 and with the national laws of the Member States derived from those articles.3 The European Court of Justice has developed related doctrines that apply to the general conflict between the monopolistic legal nature of trade mark rights and the policy of protecting competition as a means of promoting internal market integration, such as the distinction between the existence and the exercise of rights formulated in the Consten and Grundig case.4 The precedential value of the decisions giving rise to the doctrines is complicated by the cases having been considered in extreme situations, where commercial monopolies were enforced through trade mark rights. In such circumstances the court has shown itself willing to override brand interests to the extent of ensuring the future growth of competition in downstream markets. 1 Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community (2002),  O.J. C 325/1,...
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