Monday, July 30, 2012
IPR, Competition Law and Dynamic Development - IPR's Constitutionalisation and Expansion: Can the 'Common Goals' Description Cope?
Posted by D. Daniel Sokol
Jens Schovsbo, University of Copenhagen Centre for Information and Innovation Law asks IPR, Competition Law and Dynamic Development - IPR's Constitutionalisation and Expansion: Can the 'Common Goals' Description Cope?
ABSTRACT: The article opens by reminding that in most countries it is generally accepted that competition law has come to serve as a “second tier” of balancing norms to control specific cases of misuse where right holders exercise their rights to restrict competition excessively and in ways not anticipated by intellectual property law (IPR). Next, the article identifies and discusses two issues: The “constitutionalising” of IPR and the ban on compulsory licenses for trade marks in TRIPS Article 21. Regarding the first issues it pointed out that even though both competition law intervention and a “constitutional” approach to IPR may both aim to “rebalance” (i.e. limit protection) protection tensions may occur since competition law is based on an economic rational whereas the constitutional approach included no-economic interests. Interestingly, it is then pointed out that the EU's Charter on Fundamental Rights and the Lisbon Treaty have blurred the boundaries by injecting non-economic values into the basis for the competition law analysis and economic ones into the fundamental rights analysis. As far as the second issue is concerned, it is pointed out that there is a tension between the expansion of trade mark law which would be assumed to be accompanied by increased focus on competition law issues and TRIPS Article 21. On that basis it is recommended that the prohibition in TRIPS Article 21 should be construed narrowly and that one shouldn’t rule out the use of compulsory licenses in situations of misuse involving trade marks where the origin-function isn’t jeopardised but where the normal criteria for compulsory licenses are met.