Intellectual Property in Common Law and Civil Law
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Intellectual Property in Common Law and Civil Law

Edited by Toshiko Takenaka

Drawing together the views and experiences of scholars and lawyers from the United States, Europe and Asia, this book examines how different characteristics embedded in national IP systems stem from differences in the fundamental legal principles of the two traditions. It questions whether these elements are destined to remain diverged, and tries to identify common ground that might facilitate a form of harmonization.
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Chapter 17: Exhaustion of intellectual property rights in the European Union

Theo Bodewig


The exhaustion of IP Rights under the Law of the European Union (EU) is a well-established doctrine. It was developed by the European Court of Justice (ECJ) as a compromise between the principle of the freedom of movement of goods in the whole territory of the EU on the one hand and the necessity of effective protection of intellectual property rights under the laws of the member states and the EU itself on the other. One of the main tasks of the EU is to create an internal market between its member states. The idea is that goods, services, persons and capital can move freely from one member state to another. This idea is codified in the four basic freedoms of the Treaty on the Functioning of the European Union (TFEU): The freedom of movement of goods, services, persons (legal and natural)5 and capital. The exhaustion doctrine is chiefly concerned with the freedom of movement of goods (though there can be some overlap with the freedom of services). The conflict between the freedom of movement of goods under EU law and the national laws for the protection of intellectual property rights like patents, copyrights, designs, trademarks, etc. is grounded in the territoriality principle of IP laws. Since national IP protection only has effect in the respective territory, national laws traditionally protect national rights holders by granting exclusive rights including an importation right.

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