ECJ 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)
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.
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.
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.
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.
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.
Citations:
[1971] ECR 69, C-40/70, R-40/70, [1971] EUECJ R-40/70, [1971] ECR 70
Links:
Jurisdiction:
European
Cited by:
Cited – Attheraces Ltd and Another v The British Horseracing Board Ltd and Another CA 2-Feb-2007
The defendant appealed a finding that it had abused its dominant market position in refusing to supply to the claimant a copyright licence for its information on horse racing at a proper or acceptable price. The defendant was said to have a monopoly . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 21 June 2022; Ref: scu.214127
