The Impact of the WTO Agreement on TRIPs (Trade-Related Aspects of Intellectual Property Rights) on EC Law: A Challenge to Regionalism

Common Market Law Review, Vol. 35, pp. 1069-1099, 1998

31 Pages Posted: 8 Mar 2012

See all articles by Talia Einhorn

Talia Einhorn

Tel Aviv University - Faculty of Management; Ariel University

Date Written: March 7, 2012

Abstract

This study first examines the underlying rationale for TRIPs, and its two fundamental principles, the National Treatment principle and the Most-Favored-Nation principle, and evaluate their impact on EC law. The latter in particular poses an imminent danger to regional agreements. The interface between patent law and competition law has been selected to elucidate this impact. It demonstrates the conflict between TRIPs and EC single market integration, regarded by the European Court of Justice as a major objective of EC law that has so far overshadowed the development of EC competition law. The study concludes that the "Chinese" wall, which the Court of Justice has been helping to build around the EC, should tumble.

There is one way to delay this process, or even prevent it from taking place. If the provisions of TRIPs are denied direct effect, then individuals will not be able to realize the rights granted to them under this agreement. A middle-way approach, applying a rule of interpretation, and perhaps even a rule of presumption that would ensure compatibility of national and regional legislation with TRIPs, may allow for a cautious step-by-step assessment. However, it would offer no easier solutions to weighty issues, such as the maintenance of regional "exhaustion of rights".

Suggested Citation

Einhorn, Talia, The Impact of the WTO Agreement on TRIPs (Trade-Related Aspects of Intellectual Property Rights) on EC Law: A Challenge to Regionalism (March 7, 2012). Common Market Law Review, Vol. 35, pp. 1069-1099, 1998, Available at SSRN: https://ssrn.com/abstract=2017567

Talia Einhorn (Contact Author)

Tel Aviv University - Faculty of Management ( email )

P.O. Box 39010
Ramat Aviv, Tel Aviv, 6139001
Israel
+972548181540 (Phone)

HOME PAGE: http://taliaeinhorn.com

Ariel University ( email )

Ariel
Israel
+972-54-8181540 (Phone)

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