Trademark Exhaustion and Its Interface with EU Competition Law
Forthcoming in Research Handbook on IP Exhaustion and Parallel Imports, Irene Calboli & Edward Lee, eds., 2016.
24 Pages Posted: 11 May 2016
Date Written: May 10, 2016
The paper traces the evolution of the exhaustion doctrine in EU trademark law and examines its dialectic with the treatment of vertical restraints under EU competition law.
From a rigid rule not allowing the trademark proprietor to control the further commercialization of a trademarked good after its initial sale, the exhaustion doctrine in the EU has gradually developed to complex set of sub-rules balancing the diverse interests of traders, parallel importers, and the consuming public in a manner that resembles market regulation through unfair competition norms. In similar vein, the doctrine of exhaustion should encompass the potential benefits of post-sale restraints. The paper contains a critical analysis of the Court of Appeal’s ruling in Speciality European Pharma Ltd v Doncaster Pharmaceuticals Group Ltd & Madaus GmbH  EWCA CIV 54.
Keywords: exhaustion, first sale doctrine, parallel imports, free-riding, partial impediment, intellectual property, trademarks, antitrust, competition, vertical restraints, pharmaceuticals, Euro-defences, regional exhaustion, international exhaustion
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