Trademark Transactions in EU Law – Refining the Approach to Selective Distribution Networks and National Unfair Competition Law
Given the rudimentary nature of the current set of EU rules, the regulation of trademark transactions in the EU depends on a harmonious interplay of harmonized EU law on the one hand, and individual national laws on the other. This configuration of the system places a particular responsibility on the Court of Justice of the European Union. Interpreting harmonized EU rules, the Court ought to consider the impact of its decision on the proper functioning of national law. An overambitious approach seeking to maximize the harmonizing effect of the rudimentary set of EU norms will almost inevitably lead to unsatisfactory results. After a short overview of EU objects of property rules and present amendment proposals, two decisions of the CJEU will be brought into focus to illustrate this point. The decision in Copad/Dior gives rise to concerns about harmonized rules in the Trade Mark Directive becoming a straitjacket offering insufficient breathing space for the reconciliation of licensor, licensee and third party interests, while the case Martin Y Paz/Depuydt sheds light on the potential corrosive effect on national unfair competition law. The analysis shows the structural deficiencies of the current EU system and the need for additional fine-tuning based on both EU and national norms.
Flexibility Grave – Partial Reproduction Focus and Closed System Fetishism in CJEU, Pelham
In the ongoing discussion about the impact of fundamental rights on EU copyright law, the Pelham judgment of the Court of Justice of the European Union (CJEU) has received much attention. However, the decision also raises important legal-doctrinal issues. The CJEU employs the harmonized right of reproduction as a vehicle to regulate adaptations of pre-existing source material. Moreover, the Court insists on a balancing of interests within the EU matrix of exclusive rights and limitations. The closed list of limitations in EU copyright law, however, can hardly be expected to offer sufficient breathing space for adaptation scenarios. As the Information Society Directive did not harmonize the right of adaptation, there was no need to include indispensable free adaptation rules that have evolved at the national level, such as the German “free use” doctrine. Instead of embracing national rules of equity and fairness to fill the gap, the CJEU is reluctant to borrow from the legal traditions of EU Member States and misses an important opportunity to provide guidance for the regulation of adaptations outside the sound sampling arena. After an introduction to the German “Metall auf Metall” saga that led to the Pelham decision, the following analysis sheds light on these developments in EU copyright law and discusses problems arising from the approach taken by the CJEU.
Law Against Unfair Competition. Towards a New Paradigm in Europe
The Law Against Unfair Competition and Its Interfaces.- International Unfair Competition Law.- Protection Against Unfair Competition at the International Level - The Paris Convention, the 1996 Model Provisions and the Current Work of the World Intellectual Property Organisation.- The Law Against Unfair Competition and the EC Treaty.- The ECJ's Case Law on Unfair Competition.- Secondary Unfair Competition Law.- The Unfair Commercial Practices Directive.- Belgian Report: Example of an Integrated Approach.- Brief Report on Italian Unfair Competition Law.- The Scandinavian Model of Unfair Competition Law.- Unfair Competition Law in the United Kingdom.- The Legal Framework of Unfair Market Practices in Hungary.- The Law Against Unfair Competition in the Czech Republic.- The Legal Regulation of Unfair Competition in the Slovak Republic.- Unfair Competition Law in Slovenia.- Poland: Unfair Competition Law.- Unfair Competition Law in the Baltic States.