Exhaustion of Rights and Common Principles of European Intellectual Property Law
COMMON PRINCIPLES OF EUROPEAN INTELLECTUAL PROPERTY LAW, Ansgar Ohly, ed., Mohr Siebeck, Tübingen, 2010
Posted: 8 Feb 2010
Date Written: February 8, 2010
This article discusses whether or not Common Principles exist in EU law regarding exhaustion of rights (“first sale”). Traditionally, the law of the EU-countries conceptualized exhaustion in two different ways: Either “Contract” (e.g. UK law) or “Principle of exhaustion” (e.g. German law). Whereas, the first model left much to the parties - e.g. to decide on parallel importation - the second is based on precise rules in the IPR legislation. Early on, EU law opted for the exhaustion model. It is pointed out, that this was the logical method to apply in EU law because of the strong policy goals of Market Integration. On the basis of case law on the concept of “consent” from the Trade Marks-Directive a Common Principle is then established. According to this, the legal framework for understanding the exhaustion rules is IPR and not national contract law. The Principle would seem to have horizontal effects and apply also outside of trade mark law e.g. to copyright.
Keywords: Intellectual Property Rights, IPR, trade marks, EU law, Common Principles, Harmonization
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