Problemy ujednolicenia ochrony własności przemysłowej i swobodnego przepływu towarów w europejskim jednolitym rynku wewnętrznym oraz w obrocie z krajami trzecimi
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Date
1990
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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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
Abstract
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.
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Ruch Prawniczy, Ekonomiczny i Socjologiczny, 52, 1990, z. 1, s. 105-125