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Intellectual Property Rights in EU

For the following question: please develop question 1.1 and for the others, bullet points style.

Part 1: Intellectual Property in the European Union

1.1. Explain why the national regulations in the field of intellectual property may be an obstacle to the principle of free movement in the European Union?

1.2. How does the European Court of Justice try to balance intellectual property and free movement?

1.3. What are the main difficulties in this field?

1.4. Do you think that the current situation is a good balance between intellectual property and free movement and is conform to the needs of companies?

Part 2:

HB Ice cream is the main manufacturer of ice cream on the Irish market. It has 70 per cent of the market share. The number of competitors and their market shares are small.
HB provided freezer cabinets to the retailers without charge provided they were only used for the suppliers' own product and not for those of rival manufacturers.
At that time, Mars sought to win additional market share by offering the well known chocolate bars. Some retailers used HB freezer cabinets to stock Mars chocolate bars.
HB considers that the retailers didn't respect the agreement. Mars considers that the agreement doesn't conform European competition law.

What do you think of these practices ?

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STEP 1

Part 1: Intellectual Property in the European Union

1.1. Explain why the national regulations in the field of intellectual property may be an obstacle to the principle of free movement in the European Union?
If there are different laws in different countries related to intellectual property, this will lead to restrictions on free movement in the European Union. However, the EC treaty takes some measures to ensure that the quantitative restrictions between Member States are eliminated. Article 29 of EEC relates to exports and article 28 relates to imports. Article 30 qualifies these by maintaining restrictions for the protection of industrial and commercial property. So, the national regulations for " protection of industrial and commercial property" may be an obstacle to the principle of free movement in the EU. It is for this reason that the European Court of Justice has been given the job of determining whether the legal monopolies created by the IP rights in a country infringe upon the European policy on free movement of goods.

1.2. How does the European Court of Justice try to balance intellectual property and free movement?
ECJ has laid down the law of Community Exhaustion of IP rights. This means that if a product is made and sold in an EU country where it enjoys IP protection. It can freely circulate in the entire EC market without any restriction. For example, if there is a CD released by a singer in the UK and it enjoys IP protection in UK, it can be sold in any EU country without restriction.
ECJ applied this doctrine to Case 78/70, Deutsche Grammophon GmbH v. Metro-SB- Grossmärkte GmbH & Co KG 1971 E.C.R. 487, [1971] 1 C.M.L.R.case which is reputed to be the first such case. In this case the company-based Germany had supplied records to its French subsidiary. The company wanted to restrict the circulation of the records in Germany, this was disallowed by the court.

1.3. What are the main difficulties in this field?
The difficulties are that parallel patents may exist in other member states and goods sold in one country may be purchased there for a lower price and imported into other EU countries.
In Centrafarm BV and Adriaan de Peijper v. Sterling Drug Inc., 1974 E.C.R. 1147. In case of Sterling Drug case, involving patents, a ...

Solution Summary

The solution discusses intellectual property rights in the European Union. It explores the difficulty in enforcing the rights in the entire EU.

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