The problems of uniformizing the protection of industrial property and free flow of goods in the European uniform internal market and in trade with other countries

The author, Director of the Max Planck Institute for International Patent, Copyright and Competition Law in Munich considers the influence of full uniformization of the EEC market after 1992 on the protection of industrial property and on free flow of goods within the Community. He pays much attention to the relations between the internal legal systems regulating the protection of patents, trademarks, designs and copyrights to the law of the Community. Both in the present as well as in the past — 1992 prospective regulation of the EEC law a departure from the protection granted by internal (national) legal systems seems not only undesirable but also impossible. Much time is needed for common European protection laws to supersede the coexisting protection provided by internal systems. The analysis of particular industrial property rights allows the author to formulate the conclusion that the greatest progress in that respect has been achieved in the EEC patent law; European patents granted on the strength of the Munich Convention of 1973 are much in demand. It should be stressed that the creation by the end of 1992 of uniform internal EEC market is a strong incentive for intensifying the works on the uniformization of industrial property protection. The author also analyses the decisions of the EEC Court with respect to the law on industrial property and free flow of goods on the EEC market, paying special attention to decisions based on Art. 36 of the Treaty of Rome. As to the relation between the principle of free flow of goods and the restrictions resulting from internal systems of industrial property law hitherto existing decisions of the EEC Court will fully remain in force also after 1992. The Court adopted a principle, well known in German law since long, of exhaustion of a right to trademark. This principle allows neither to divide the Common Market by means of national trademarks nor to isolate it from goods produced or reimported from the outside of the Common Market as long as such goods have been provided with a trademark by an authorized person. Circulation restrictions are to maintain arificially high prices for trademarked goods. Towards the end of his article the author points out that there is a danger of changing that situation once the European trademark law comes into force. Recently, under the pressure of industrial lobbies, views have been expressed that this law should regulate only the institution of „European" and not „exterritorial" exhaustion of a right. Such a short-sighted and economically unjustified regulation could lead to the protectionistic isolation of the Community from the rest of the world. The author is strongly for retaining the conception of exterritorial exhaustion of a right to a trademark

The principle of exhaustion in national patent and copyright law of some european countries

info:eu-repo/semantics/publishedVersio

The problems of uniformizing the protection of industrial property and free flow of goods in the European uniform internal market and in trade with other countries

The author, Director of the Max Planck Institute for International Patent, Copyright and Competition Law in Munich considers the influence of full uniformization of the EEC market after 1992 on the protection of industrial property and on free flow of goods within the Community. He pays much attention to the relations between the internal legal systems regulating the protection of patents, trademarks, designs and copyrights to the law of the Community. Both in the present as well as in the past — 1992 prospective regulation of the EEC law a departure from the protection granted by internal (national) legal systems seems not only undesirable but also impossible. Much time is needed for common European protection laws to supersede the coexisting protection provided by internal systems. The analysis of particular industrial property rights allows the author to formulate the conclusion that the greatest progress in that respect has been achieved in the EEC patent law; European patents granted on the strength of the Munich Convention of 1973 are much in demand. It should be stressed that the creation by the end of 1992 of uniform internal EEC market is a strong incentive for intensifying the works on the uniformization of industrial property protection. The author also analyses the decisions of the EEC Court with respect to the law on industrial property and free flow of goods on the EEC market, paying special attention to decisions based on Art. 36 of the Treaty of Rome. As to the relation between the principle of free flow of goods and the restrictions resulting from internal systems of industrial property law hitherto existing decisions of the EEC Court will fully remain in force also after 1992. The Court adopted a principle, well known in German law since long, of exhaustion of a right to trademark. This principle allows neither to divide the Common Market by means of national trademarks nor to isolate it from goods produced or reimported from the outside of the Common Market as long as such goods have been provided with a trademark by an authorized person. Circulation restrictions are to maintain arificially high prices for trademarked goods. Towards the end of his article the author points out that there is a danger of changing that situation once the European trademark law comes into force. Recently, under the pressure of industrial lobbies, views have been expressed that this law should regulate only the institution of „European" and not „exterritorial" exhaustion of a right. Such a short-sighted and economically unjustified regulation could lead to the protectionistic isolation of the Community from the rest of the world. The author is strongly for retaining the conception of exterritorial exhaustion of a right to a trademark

The European Patent System

The formation of the European patent system, which I have presented here only in part and which is still missing one essential element, the Common Market patent, constitutes a milestone in the development of international patent law. No event since the Paris Convention for the Protection of Industrial Property in 1883 has so drastically changed the system of protection of inventions as the European patent system will. I do not except the Patent Cooperation Treaty (PCT) signed in Washington in 1970 and entered into force over two years ago. It certainly overcomes the territorial approach of the Paris Convention in that it provides for an international patent application and a single novelty search for several countries. But it leaves the substantive law, as well as the patent granting and examination procedure and the final act of granting the monopoly, to the competence of the individual state for which protection is sought. Notwithstanding the progress attained in international cooperation by the Paris Convention and the PCT, the legal basis of international patent protection is still, as 100 years before, the grant of national patents, through national patent authorities, according to national laws. This territorial or national phase of patent law will be overcome by the European patent system. We are at the beginning of a new, supranational phase of patent law development. Even though limited in direct effect to Western Europe, the European patent system will certainly provide a model for the establishment of other regional patent systems and will also influence the further development of national patent systems outside of Europe. This seems to me an encouraging perspective which is so urgently needed in our divided world