Intellectual Property Rights v. EC rules on competition: "a difficult marriage"

Intellectual property rights are exclusive by nature, the holder of the rights acqu­ires a legal monopoly enabling him to oppose, by way of an infringement action, any unautborized use of the subject-matter of the right involved (e.g. patented inventi­on, trade mark, work protected by copyright etc.). These rights can be subject of contract (e.g. licences subject to specific terms).

The existence of IP rights and their exercise (e.g. granting of licences) may be restrictive of free competition. EC Court of Justice developed a set of rules explaining how the EC law on competition and free movement of goods should be applied to the IP rights, or, more precisely to the exercise of such rights (e.g. the exhaustion of rights principle).

The exercise of IP rights may be probibited as contrary to art. 85 EC Treaty where it is "the subject, the means or the result of a restrictive practice" i.e. if the agreement restricts competition: e.g. by tbe creation of artificial territorial partiti­ons of the market, absolute territorial protection etc.: in those cases, the IP rights are indeed merely used in order to set non justified obstacles to free competition.

The exercise of an IP right can, under specific circumstances, constitute an abuse of a dominant position in the sense of art. 86 EC Treaty (e.g. "TV Guide case": refusal by the Irish broadcasting organisation to grant licences to third parties to reproduce its copyright TV programme schedules).