Keywords
Summary

Keywords

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1 . POLICY OF THE EEC - RULES ON COMPETITION - APPLICATION TO THE EXERCISE OF NATIONAL INDUSTRIAL AND COMMERCIAL PROPERTY RIGHTS

( EEC TREATY, ARTICLES 36 AND 85 )

2 . POLICY OF THE EEC - RULES ON COMPETITION - APPLICATION TO TRADE-MARK RIGHTS - IDENTICAL CONDITIONS IRRESPECTIVE OF THE PROVISIONS OF NATIONAL LAW

( EEC TREATY, ARTICLE 85 )

3 . POLICY OF THE EEC - RULES ON COMPETITION - APPLICATION TO TRADE-MARK RIGHTS - AGREEMENTS WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES - PARALLEL ASSIGNMENTS OF NATIONAL TRADE-MARK RIGHTS IN RESPECT OF THE SAME PRODUCT

( EEC TREATY, ARTICLE 85 )

4 . POLICY OF THE EEC - RULES ON COMPETITION - APPLICATION IN TIME - AGREEMENT PRIOR TO THE TREATY

( EEC TREATY, ARTICLE 85 )

5 . POLICY OF THE EEC - RULES ON COMPETITION - TRADE-MARK RIGHTS - ABUSE OF A DOMINANT POSITION - SALE PRICE OF THE PRODUCT SUBJECT TO A TRADE-MARK - FACT NOT NECESSARILY CONSTITUTING AN ABUSE

( EEC TREATY, ARTICLE 86 )

Summary

1 . THE RIGHTS RECOGNIZED BY THE LEGISLATION OF A MEMBER STATE ON THE SUBJECT OF INDUSTRIAL AND COMMERCIAL PROPERTY ARE NOT AFFECTED, SO FAR AS THEIR EXISTENCE IS CONCERNED, BY ARTICLE 85 AND 86 OF THE TREATY .

HOWEVER, THEIR EXERCISE MAY FALL UNDER THE PROHIBITIONS IMPOSED BY THESE PROVISIONS .

( CF . PARAGRAPH 2, SUMMARY, JUDGMENT IN CASE 24/67 ( 1968 ) ECR 55 )

2 . A TRADE-MARK RIGHT, AS A LEGAL ENTITY, DOES NOT IN ITSELF POSSESS THOSE ELEMENTS OF CONTRACT OR CONCERTED PRACTICE REFERRED TO IN ARTICLE 85 ( 1 ); NEVERTHELESS, THE EXERCISE OF THAT RIGHT MAY FALL WITHIN THE AMBIT OF THE PROHIBITIONS CONTAINED IN THE TREATY EACH TIME IT MANIFESTS ITSELF AS THE SUBJECT, THE MEANS, OR THE CONSEQUENCE OF A RESTRICTIVE PRACTICE .

ARTICLE 85 THEREFORE IS APPLICABLE TO THE EXTENT TO WHICH IMPORTS OF PRODUCTS WHICH BEAR THE SAME TRADE-MARK AND WHICH ORIGINATE IN DIFFERENT MEMBER STATES ARE PREVENTED BECAUSE THE PROPRIETORS HAVE ACQUIRED THE TRADE-MARK OR THE RIGHT TO USE IT, WHETHER BY AGREEMENTS BETWEEN THEMSELVES OR BY AGREEMENTS WITH THIRD PARTIES .

THE FACT THAT UNDER NATIONAL LEGISLATION TRADE-MARK RIGHTS MAY ORIGINATE IN LEGAL CIRCUMSTANCES OTHER THAN THE ABOVEMENTIONED AGREEMENTS, SUCH AS REGISTRATION OF THE TRADE-MARK OR ITS UNDISTURBED USE, DOES NOT PRECLUDE THE APPLICATION OF ARTICLE 85 .

3 . ONLY A RESTRICTIVE AGREEMENT WHICH AFFECTS TRADE BETWEEN MEMBER STATES TO AN APPRECIABLE EXTENT AND WHICH RESTRICTS COMPETITION WITHIN THE COMMON MARKET COMES UNDER ARTICLE 85 .

( CF . PARAGRAPH 7, SUMMARY, JUDGMENT IN CASE 56/65, ( 1966 ) ECR 236 )

IF THE COMBINATION OF ASSIGNMENTS TO DIFFERENT USERS OF NATIONAL TRADE-MARKS PROTECTING THE SAME PRODUCT HAS THE RESULT OF RE-ERECTING IMPENETRABLE FRONTIERS BETWEEN THE MEMBER STATES, SUCH A PRACTICE MAY WELL AFFECT TRADE BETWEEN MEMBER STATES AND DISTORT COMPETITION WITHIN THE COMMON MARKET .

4 . FOR ARTICLE 85 ( 1 ) TO APPLY TO A RESTRICTIVE PRACTICE WHICH AROSE BEFORE THE TREATY ENTERED INTO FORCE, IT IS BOTH NECESSARY AND SUFFICIENT THAT IT CONTINUES TO PRODUCE ITS EFFECTS AFTER THAT DATE .

5 . THE PROPRIETOR OF A TRADE-MARK DOES NOT ENJOY A " DOMINANT POSITION " WITHIN THE MEANING OF ARTICLE 86 MERELY BECAUSE HE IS IN A POSITION TO PREVENT THIRD PARTIES FROM PUTTING INTO CIRCULATION, ON THE TERRITORY OF A MEMBER STATE, PRODUCTS BEARING THE SAME TRADE-MARK .

IT IS ALSO NECESSARY THAT THE PROPRIETOR OF THE TRADE-MARK SHOULD HAVE POWER TO IMPEDE THE MAINTENANCE OF EFFECTIVE COMPETITION OVER A CONSIDERABLE PART OF THE RELEVANT MARKET, HAVING REGARD IN PARTICULAR TO THE EXISTENCE AND POSITION OF ANY PRODUCERS OR DISTRIBUTORS WHO MAY BE MARKETING SIMILAR GOODS OR GOODS WHICH MAY BE SUBSTITUTED FOR THEM .

THE PRICE LEVEL OF THE PRODUCT DOES NOT NECESSARILY SUFFICE TO DISCLOSE THE ABUSE OF A DOMINANT POSITION WITHIN THE MEANING OF ARTICLE 86 .

IT MAY, HOWEVER, IF UNJUSTIFIED BY ANY OBJECTIVE CRITERIA, AND IF IT IS PARTICULARLY HIGH, BE A DETERMINING FACTOR .

( CF . PARAGRAPH 3, SUMMARY, JUDGMENT IN CASE 24/67, ( 1968 ) ECR 55 )