Учебное пособие по переводу (на материале текстов по европейскому праву) - страница 12

International exhaustion

The principles outlined above will only apply to trade within the Community. Where parties seek to assert their property rights to prevent goods from third countries from entering the Community, the free movement provisions of Articles 28 and 30 do not apply. In Silhouette (case C-355/96), the ECJ held that national rules of an EU Member State providing for exhaustion of trade-mark rights for products put on the market outside the EEA (European Economic Area) with the consent of the trade-mark proprietor were incompatible with the terms of the Trade Marks Directive. From the wording of Article 7(1), exhaustion would take place only if the goods had been put on the market within the EEA. The Court took the opportunity to refine the scope of this ruling in Sebago Inc. v GB-Unic (case C-173/98). Sebago was the owner of trade marks for shoes, registered in Benelux. GB-Unic sold some Sebago shoes which had been manufactured in El Salvador and imported into the EU via a supplier in Belgium. Sebago claimed that this violated its rights, as it had not consented to the sale of those shoes in the Community. GB-Unic argued that it is sufficient for consent (thereby triggering the exhaustion doctrine) if the proprietor of the trade mark has consented to the marketing in the EC of similar goods bearing the same trade mark. Having reaffirmed its judgment in Silhouette, the ECJ then went on to take a narrow view of consent, stating that consent must relate to the specific goods in respect of which exhaustion was claimed.

Intellectual property rights and competition law

The ECJ has drawn a distinction between the existence of industrial property rights and their exercise. The mere existence of industrial property rights cannot infringe Articles 81 or 82 EC; an improper or abusive exercise of these rights, however, can. The exploitation of industrial or commercial property rights will be improper if these rights are used to defeat Community law on restrictive practices. Any concerted attempt or attempt by a dominant undertaking to use these rights to partition markets, or to maintain artificial price levels, or to impose discriminatory or unfair conditions on trading partners is liable to fall foul of Articles 81 or 82 EC.

Improper exercise of rights

In ^ Etablissements Consten SA v Commission (cases 56 & 58/64) Consten could not rely on its trade-mark rights to prevent parallel imports of Grundig products from other Member States. The purpose of the GINT trade mark was not to protect the owner's legitimate rights in his product, for example, to prevent other goods being passed off as Grundig's, but to partition the market and ensure absolute territorial protection for Grundig products in France. Thus its exercise in the context of Grundig's dealer agreement was in breach of Article 81(1).

The same principle has been applied to patents and copyright. In ^ Parke, Davis & Co. v Probel (case 24/67) the Court held that an 'improper exploitation' of patent rights in the context of agreements, decisions of undertakings or concerted practices or by firms in a dominant position could breach EC competition law.

In Re GEMA ([1971] CMLR D35) the Commission found that GEMA, an authors' rights society holding a dominant position in authors' copyright in Germany, was improperly exploiting its rights in breach of Article 82. GEMA was exploiting its copyrights by discriminatory practices; it was discriminating against nationals from other Member States, who could not become full members; it paid supplementary fees, 'loyalty bonuses', only to some of its members from a fund to which all had contributed, without objective justification. It was imposing unfair conditions on its members, by extending its contractual rights to non-copyright works, and claiming rights to future works. All these practices went beyond what was necessary to protect GEMA's legitimate property rights.

Similarly, in Windsurfing International Inc. v Commission (case 193/83) WSI, the owner of patent licences in a special sail rig (comprising mast, mast foot, sail and pair of curved booms) for use with windsurfing boards, was seeking in its licensing agreements to impose unnecessary restrictions on its licensees in breach of Article 81(1). For example, licensees were required to exploit the patents (for the rigs) only for the manufacture of sailboards using hulls which had been given WSI's prior approval; to pay royalties for rigs made under the patent on the basis of the selling price of the complete sailboard; to manufacture only in a specified manufacturing plant; and they were not permitted to challenge the licensed patents. These provisions were all found to constitute improper exploitation.

The specific subject matter of intellectual property rights

In placing limitations on the exercise of industrial property rights, the Commission, supported by the Court, has curtailed the very substance of these rights. These rights can now only be exercised to protect what the Commission regards as the 'specific subject matter' of the property concerned. In this, there are similarities to the approach adopted under Article 30 regarding goods, and under the ECJ's case law regarding services.

The specific subject matter of the property, to protect which industrial property rights may legitimately be exercised, has been narrowly defined. For patents, it is to ensure, to the holder, so as to recompense the creative effort of the inventor, the exclusive right to use an invention (Centrafarm BV-v Sterling Drug Inc. (case 15/74)). Patent rights clearly merit protection if the Community wishes to encourage creative endeavour. Thus while patent licensing agreements have generally been held in breach of Article 81(1) the Commission has been prepared to grant exemption under Article 81(3) (e.g., Davidson Rubber Co. [1972] CMLR D52), and it is expected that this view will continue to be taken under the decentralised enforcement system now applicable.

The specific subject matter of a trade-mark right is to protect the owner from competitors who would profit, deliberately or accidentally, from the reputation and goodwill attached to the mark by selling goods with the same mark, or one which was sufficiently similar to cause confusion in the mind of the consumer (see, e.g., Deutsche Renault AG v Audi AG (case C-317/91)). Thus, trade-mark rights cannot be used simply to prevent parallel imports within the EC of the trade-marked product, which may be cheaper than the same product sold in the importing State, even to protect a distributor's investment in a particular territory from 'free riders' (i.e., parallel importers who seek to take advantage of the product's goodwill, built up by the promotional efforts of others). It is only rights in the product which are protected.

In NDC Health Corporation v ^ IMS Health (case C-481/01 P(R)), the CFI (upheld by the ECJ) emphasised that a refusal to licence intellectual property rights would only then constitute an abuse within Article 82 EC if there are exceptional circumstances in the public interest which required that a licence be granted. The Commission, following a complaint from NDC, had taken the view that IMS Health has a dominant position in the German market for data services on sales and prescriptions of pharmaceuticals. IMS had developed a geographical model of analysis, called a 'brick structure', which is used for making available sales data to IMS customers and which constituted a de facto industry standard. The dominance arose because IMS customers had been heavily involved in the development of this 'brick structure' and were therefore dependent on it. Having concluded that IMS's refusal to license the use of their model of analysis meant that there existed a prima facie case for abuse of IMS's dominant position, the Commission ordered IMS to grant a licence by way of interim measure. This decision was suspended by the CFI and an appeal to the ECJ against the suspension failed. The CFI (case T-184/01 R) emphasised that: “… the respect for property rights in general and for intellectual property rights in particular is expressly reflected in Articles 30 and 295 EC. The mere fact that the applicant has invoked and sought to enforce its copyright ... for economic reasons does not lessen its entitlement to rely upon the exclusive right granted by national law for the very purpose of rewarding innovation.”

The evidence suggested that the lack of competition which resulted from the refusal to license was not perceptible, but rather that the position of particular competitors had become difficult because they could not use similar technology. This, however, was not enough to find a prima facie infringement of Article 82 (note that the Commission subsequently withdrew its decision).


Because of the wide disparity in national trade-mark rules and its resulting adverse impact on the internal market, harmonisation at Community level was clearly required. In the field of trade marks, Directive 89/104 was passed in 1989 ([1989] OJ L40/1). Its aim was to approximate those aspects of trade-mark law which most directly affect the functioning of the common market, to ensure that the conditions for obtaining and continuing to hold a registered trade-mark right are the same in all Member States. The directive defines trade-mark rights and the rights attached to trade-mark ownership, as well as its limitations. It provides common grounds for refusal of registration, invalidity and loss or exhaustion of rights. The effect of the measure is to broaden the scope of what may be registered as a trade mark and extend the rights conferred by trade-mark registration, thereby reducing the need for reliance on the unpredictable remedy of passing off. However, as the Court pointed out in IHT (case C-9/93), the directive does not change the essential character of national trade-mark law, which remains essentially territorial and independent.

The Trade Marks Directive has not been without its critics. One particular area of concern is the scope of the exhaustion doctrine in relation to goods from outside the EU, the case law on which parallels that in relation to similar cases brought under Article 30 The narrow interpretation of the exhaustion rule in Article 7(c) of the Trade Marks Directive has been the subject of some adverse comment, as, by limiting the scope of the exhaustion doctrine, it allows companies to partition markets and maintain high prices. A report comparing prices between the EU and the USA showed that prices in the USA tend to be between 40-50 per cent of those in the EU.

In the absence of full harmonisation of national trade-mark law, Regulation 90/ 94 ([1994] OJ Lll) was introduced. The regulation provided for the introduction of a Community trade mark, covering all the Member States, to be obtained by a single application. The Commission presented a proposal for amendments to the regulation (СОМ (2002) 767 final), which was subsequently adopted in Regulation 422/2004 ([2004] OJ L70/1).

The legal protection of designs is now covered by Directive 98/71/EC, which required Member States to harmonise the central elements of their design laws, was agreed in 1998 and came into force in 2001. The Regulation on Community Design was adopted in 2001 (Regulation 6/2002, [2002] OJ L3/1). It introduces Community registered designs and Community unregistered designs as other means of protection for designs. The Commission proposals on 'utility models' (СОМ (97) 691) have not progressed. The Commission has put forward proposals for a Community patent and a proposal for a Directive on patent protection for inventions related to computer programs, both based on the Green Paper (СОМ (95) 382).

In the field of copyright, eight directives have been agreed. Directive 93/83 provided for the coordination of certain rules relating to copyright and rights relating to copyright applicable to satellite broadcasting ([1993] OJ L246), and Directive 93/ 98 provided for the harmonisation of the terms of protection of copyright and related rights ([1993] OJ L290). Specific directives apply to copyright in the broadcasting area (e.g., the Lending Rights Directive 92/100/EEC ([1992] OJ L346/61) and the Satellite Broadcasting and Cable Retransmission Directive 93/83/EEC ([1993] OJ L248/15)) and there is a directive on the legal protection of topographies of semiconductor products (Directive 87/54/EEC) and on the legal protection of databases (Directive 96/9). More recently, directives on copyright and the information society (Directive 2001/29); and on the resale right for the benefit of the original author of a work of art (Directive 2001/84) have been agreed. Finally, a directive on measures and procedures to ensure the enforcement of intellectual property rights was adopted in 2004 (Directive 2004/48/EC [2004] OJ L195/16).

1 Здесь и далее русский перевод цитируется по учебнику «Европейское право» под редакцией

проф. Л.М Энтина. М., 2000 г.

* Большинство статей, содержащихся в таблице, уже были представлены в предшествующих разделах пособия, но приводятся еще раз для удобства работы с материалами, предлагаемыми по текущей теме.

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