Euro-defences - quick queries

To what extent can a defendant in intellectual property infringement proceedings resist an IP owner's action on the ground that the IP owner is transgressing competition rules, either by abusing his monopoly (EC Treaty, Art.82) or by ganging up with others in order to pervert or distort competition (EC Treaty, Art.81)?

Right: IP owners are entitled to ward off infringers, but can they do so if they also keep out lawful competition?

IPKat co-bloggie Jeremy is currently putting the finishing touches to a talk he's giving in a fortnight's time on this topic and it occurred to him that, though there are lots of British cases in which so-called "Euro-defences" are raised, he has never thought of looking for any cases in which these defences have been discussed or allowed in other national jurisdictions in the European Union. Nor does he recall any instance in which the principle of the availability of competition law defences to IP infringement actions has been reviewed by the European Court of Justice - even though the impact on trade is potentially far-reaching if some countries allow Euro-defences while others say, "sorry we can't help you if you're infringing an IP right - if you've got a grievance against an IP owner you have to go through the relevant competition policy enforcement procedures".

If anyone has any observations on this topic, an email to Jeremy here will be greatly appreciated. All useful contributions will be duly acknowledged in the conference paper.
Euro-defences - quick queries Euro-defences  -  quick queries Reviewed by Jeremy on Thursday, March 08, 2007 Rating: 5

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