Intellectual Property, Competition Rules, and the Emerging Internal Market: Some Thoughts on the European Exhaustion Doctrine

By Westkamp, Guido | Marquette Intellectual Property Law Review, Summer 2007 | Go to article overview

Intellectual Property, Competition Rules, and the Emerging Internal Market: Some Thoughts on the European Exhaustion Doctrine


Westkamp, Guido, Marquette Intellectual Property Law Review


INTRODUCTION

I.   THE EMERGENCE OF THE EXHAUSTION RULE
     A. Territorial Restrictions and Competition Law
     B. Technology Transfer and Vertical Restraints

II.  BLOCK EXEMPTIONS AND EXHAUSTION
     A. Scope of Application for Intellectual Property Rights
     B. The Twofold Meaning of Consent
     C. Territorial Restrictions as Sector-Specific Exemptions on
        Exhaustion?
        1. Market Freedom and Differentiation of Market Levels
        2. Potential Disparities Between Block Exemptions

III. THE MYTH OF EUROPEAN EXHAUSTION: THE DOCTRINAL
     STATUS OF ARTICLE 30 EC IN COMPETITION LAW
     A. Construction of Intellectual Property Under Article 30 EC:
        A Matter of Intellectual Property Regulation?
     B. Implemented European Intellectual Property Regulation:
        The Applicability of Article 28 EC and Permissible
        Restraints

IV.  THE EFFECTS OF HARMONIZING TERRITORIAL RESTRAINTS:
     THE BLIND SPOTS
     A. Partial Inapplicability of Article 30 EC?
     B. Territorial Restraints and National Exhaustion Rules
     C. Non-Territorial Restraints and European Exhaustion

CONCLUSION

INTRODUCTION

The doctrine of exhaustion plays an important role in European intellectual property law to preserve the free movement of products protected by intellectual property rights. However, despite the seemingly uncomplicated principles of this doctrine, a high degree of uncertainty as to its proper doctrinal foundations persists as it is applied in a variety of different legal contexts. This Article traces the application of the doctrine of exhaustion through the different legal contexts in which it is applied, assesses the status of the doctrine, evaluates the interpretation and scope of the doctrine within European Community law, (1) and aims to highlight pertinent issues regarding the doctrine in relation to both domestic and cross-border issues. The history of the treatment of the doctrine of exhaustion evidences a remarkably complex structure: the formulation of the exhaustion rule under Article 30 EC (2) was subsequently incorporated into secondary intellectual property legislation, and the European exhaustion rule was implemented into national laws. This has made it difficult to formulate more refined rules governing licensing provisions restricting the free circulation of goods. This has also resulted in uncertainty as to the proper definition of the exhaustion rule and its guiding principles. As discussed in this Article, it has also resulted in an unintelligible equation between the basic freedoms to provide, on the one hand, trade and services under European Community law and, on the other hand, to provide classification of economic rights in intellectual property.

I. THE EMERGENCE OF THE EXHAUSTION RULE

Article 28 EC incorporates the principle of free movement of goods, and it prohibits quantitative restrictions on imports between Member States and all other measures of equivalent effect. (3) Under Article 30 EC, however, national law may derogate from the principle of free movement of goods if the measure in question is justified and proportional in relation to the impact of the prima facie contravention of Articles 28 and 29 EC and the specific objective the national rule seeks to accomplish. (4) In relation to intellectual property cases, the European Court of Justice (ECJ) has established that a violation of Article 28 EC may be justified only if the existence of the right is concerned, (5) which was later specified so as to relate to the specific subject matter. (6) The doctrine of exhaustion has been employed as to underpin these distinctions. (7)

Intellectual property lawyers often deem the jurisprudence regarding the interface of intellectual property and the principle of free movement of goods as an unswerving interpretation of the proprietary scope of territorial intellectual property rights within a European context. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Intellectual Property, Competition Rules, and the Emerging Internal Market: Some Thoughts on the European Exhaustion Doctrine
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.