Intellectual Property Rights in EU Law Volume I: Free Movement and Competition Law

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ISBN: 9780198259183 | 0198259182
Cover: Hardcover
Copyright: 4/8/2004

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This volume provides an in-depth analysis of the relationship between intellectual property rights (including patents, trade marks, copyright, and designs) and the law of the European Union. It examines the conflict between intellectual property rights (exclusive rights limited normally to theterritory of a single Member State) and the principle of free movement of goods and services in the internal market. The various tests and theories propounded by the European Court of Justice in attempting to resolve that conflict are explained from a critical standpoint. The ramifications of theexhaustion-of-rights principle are explored and chapters of this volume are devoted to trade marks, patents, and copyright. Finally, the volume examines the limitations on the exercise of intellectual property rights as a result of EC competition law.Volume 2 will cover EU legislation which has harmonized intellectual property law and created unitary intellectual property rights such a the Community trade mark.

Table of Cases

Table of EC Legislation

xxv

Table of International and National Legislation

xxxix

Table of Abbreviations

xliii

Note on the renumbering of the EC Treaty articles

xliv

1. The scope of the undertaking

(4)

2. The free movement of goods and services: an overview of the basic principles

(17)

1. The goal of market integration

(3)

2. The EC Treaty provisions on the free movement of goods and services

(2)

2.1 Goods

(1)

2.2 Services

(1)

3. The scope of Article 28: from Dassonville to Keck and beyond

(6)

4. The scope of Article 49

(1)

5. Derogations from the principle of free movement

(6)

5.1 Goods

(3)

5.2 Services

(3)

3. The conflict between intellectual property rights and the principle of free movement

(8)

1. The essence of the problem

(2)

2. Radical solutions to the conflict: harmonization of national law and the creation of unitary intellectual property rights

(4)

3. The main principles established by the European Court of Justice

(2)

4. The applicability of national laws governing the creation of intellectual property rights, in the absence of harmonization

(21)

1. A questionable principle

(1)

2. Keurkoop v Nancy Kean Gifts: the Court gives carte blanche to national law as regards design rights

(3)

3. The concept of relative novelty

(3)

4. Industrie Diensten Groep v Beele: the Court requires justification for a national rule against 'slavish imitation'

(2)

5. Thetford v Fiamma: the Court enquires whether a rule of national patent law is justified

(4)

6. CICRA v Renault: the Court still refuses to scrutinize national design laws

(1)

7. Designations of origin: the Court requires justification

(2)

8. Warner Brothers and Metronome v Christiansen: the Court requires justification for a national rule on video rental rights

(1)

9. The principle of non-discrimination: the Phil Collins case

(5)

5. The dichotomy between the existence of the right and its exercise

(10)

1. The search for the appropriate test

(1)

2. The origin of the distinction between existence and exercise in competition law

(1)

3. The extension of the distinction to the free movement of goods

(2)

4. The dubious merits of the distinction

(2)

5. Article 295 as a guarantee of property rights

(1)

6. The outer limits of the principle that Community law does not affect the existence of intellectual property rights

(4)

6. The specific subject-matter of the right

(14)

7. The exhaustion of rights

(72)

1. The concept of exhaustion

(3)

2. Different types of exhaustion: national, international, and Community-wide

(2)

3. The early cases: Consten and Grundig and Deutsche Grammophon

(2)

4. Sales by related undertakings

(14)

4.1 The nature of the problem

(1)

4.2 Sales by members of the same economic group

(1)

4.3 Sales by an agent or distributor

(1)

4.4 Sales by licensees

(1)

4.5 Compulsory licences

(3)

4.6 Assignments

(2)

4.7 Sales made In breach of a contractual agreement with the right-holder

(4)

4.8 The distinction between direct sales and parallel imports

(3)

5. Is consent the only relevant factor?

(18)

5.1 Introduction

(1)

5.2 The Sterling Drug and Winthrop cases

(3)

5.3 The GEMA case

(3)

5.4 Merck v Stephar

102

(6)

5.5 Merck v Primecrown

108

(6)

6. Geographical scope of the exhaustion principle in EC law

114

(33)

6.1 The basic rule: Community-wide exhaustion

114

(1)

6.2 Exhaustion under the EEA Agreement

115

(4)

6.3 Exhaustion under free trade agreements

119

(10)

6.4 International exhaustion under EC law

129

(18)

8. Trade marks

147

(96)

1. The role of trade marks in a market economy

147

(12)

1.1 The origin function of trade marks

147

(2)

1.2 Ancillary functions of trade marks

149

(4)

1.3 The Court of Justice's understanding of the role of trade marks

153

(5)

1.4 The Community legislature's view of the functions of trade marks

158

(1)

2. Trade mark conflicts in the European Community

159

(35)

2.1 The nature of the problem

159

(2)

2.2 The rise and fall of the doctrine of common origin

161

(13)

2.3 The likelihood of confusion: who decides and by what criteria?

174

(20)

3. Repackaging and relabelling of trade-marked goods

194

(19)

3.1 The nature of the phenomenon

194

(1)

3.2 The early cases: Hoffmann-La Roche and Pfizer

195

(3)

3.3 Two types of repackaging: are they significantly different?

198

(2)

3.4 Reappraisal of the case law in Paranova

200

(4)

3.5 Further refinements of the Paranova principles

204

(1)

3.6 Loendersloot: the relabelling of whisky

205

(2)

3.7 The use of different trade marks for the same product

207

(6)

4. Advertising and the exhaustion of the trade mark owner's right

213

(6)

5. Unfair competition, consumer protection, and trade marks

219

(24)

5.1 Introduction

219

(2)

5.2 The Court's general approach to unfair competition and consumer protection

221

(1)

5.3 A potpourri of cases

222

(13)

5.4 Misleading trade marks

235

(8)

9. Patents

243

(20)

1. The justification for patent protection

243

(3)

1.1 General

243

(1)

1.2 The Court of Justice's understanding of the rationale of patents

244

(2)

2. Patents as an obstacle to the free movement of goods

246

(3)

3. Compulsory licences and licences of right

249

(10)

4. A fair deal for pharmaceutical patents?

259

(4)

10. Copyright

263

(34)

1. Copyright; droit d'auteur; neighbouring rights

263

(2)

2. The territoriality of copyright

265

(1)

3. The specific subject-matter and essential function of copyright

266

(5)

4. Reproduction right and performance right: the limitations of the exhaustion principle

271

(2)

5. Coditel I: performance right, broadcasting and the freedom to provide cross-frontier services

273

(4)

6. Council Directive 93/83/EEC

277

(1)

7. Performance right and the free movement of goods

278

(3)

8. Video rental and lending rights after harmonization

281

(3)

9. International agreements concerning copyright and related rights

284

(13)

9.1 The Berne Convention

284

(2)

9.2 The Universal Copyright Convention (UCC)

286

(1)

9.3 The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the 1961 Rome Convention)

287

(2)

9.4 The 1971 Phonograms Convention

289

(1)

9.5 The 1974 Satellite Convention

290

(1)

9.6 The Agreement on Trade-related Aspects of Intellectual Property Rights, including trade in Counterfeit Goods (TRIPS)

290

(1)

9.7 The status and significance of the main international agreements In EC law

291

(6)

11. Competition law

297

(106)

1. Introduction

297

(1)

2. The Treaty prohibition on anti-competitive collusion between undertakings

297

(11)

2.1 The structure of Article 81

297

(1)

2.2 The implementation of the prohibition under Regulation No. 17

298

(4)

2.3 The reforms introduced by Regulation No. 1/2003

302

(4)

2.4 The substance of the prohibition

306

(2)

3. Anti-competitive agreements and intellectual property rights

308

(57)

3.1 Introduction

308

(1)

3.2 Assignments and licences in general

309

(2)

3.3 Trade mark assignments

311

(6)

3.4 Copyright assignments and licences

317

(7)

3.5 Patent and know-how licensing

324

(27)

3.6 Trade mark licensing

351

(7)

3.7 Trade mark delimitation agreements

358

(5)

3.8 Software licensing

363

(2)

4. The Treaty prohibition on abuse of market power

365

(38)

4.1 The essentials of Article 82

365

(1)

4.2 Establishing the existence of a dominant position

366

(10)

4.3 Can the exercise of an intellectual property right constitute an abuse of a dominant position?

376

(27)

Index

403

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Intellectual Property Rights in EU Law Volume I: Free Movement and Competition Law

Summary

Author Biography

Table of Contents

Supplemental Materials