Intellectual property rights in the EU : Harmonization and unification instead of inconsistencies?

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Intellectual property rights in the

EU

Harmonization and unification instead of inconsistencies?

Bachelor’s thesis in commercial and tax law (intellectual property law)

Author: Lindahl, Filip

Tutor: Humphreys, Edward

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Bachelor’s thesis in commercial and tax law(intellectual property law)

Title: Intellecutal propertyrights – harmonization and unification instead of inconsistencies?

Author: Lindahl, Filip

Tutor: Humphreys, Edward

Date: 2011-05-19

Subject terms: Intellectual propertyrights, the principle of free movement of goods, harmonization, unification, conflict, solution

Abstract

The conflict between the principle of free movement of goods and intellectual property rights is one of the obstacles that the EU has to overcome in order to create a common market between the Member States. As of today the solution adopted by the ECJ is to jus-tify derogations from the principle of free movement of goods on various grounds, incon-sistent between different intellectual property rights. The fact that intellectual property rights often are limited to the territory of a Member State means, furthermore, that incon-sistencies also exist because of discrepancies in national law. Within this area progress has, however, been made in all four principal areas. But when it comes to intellectual property rights with unitary effect, patents and copyright are a long way from the same level of de-velopment as trade marks and designs.

In other words, not only are there inconsistencies between different national laws within the field of intellectual property rights, but also between the four principal forms due to the development of unification and the grounds on which derogations from the principle of free movement of goods are justified. The first two are unjustified inconsistencies which the EU have worked, and still work, hard to eliminate. But the third has to be regarded as justified, since different intellectual property rights have different purposes, subject matter and specific subject matter.

The ultimate solution to the conflict between the principle of free movement of goods and intellectual property rights would be a combination between complete harmonization and the creation of unitary rights within the areas of patents, trade marks, copyright and designs. This is so since the purpose of the unification of intel-lectual property rights is not to replace the current system entirely, but to stand alongside the national laws.

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Abbreviations ... iii

1 Introduction ... 1

1.1 Background ... 1

1.2 Purpose and limitation ... 2

1.3 Method and material ... 3

2 Intellectual property rights ... 5

2.1 Justifications ... 5

2.2 Purpose and subject matter ... 6

2.2.1 Patents ... 6

2.2.2 Trade marks ... 6

2.2.3 Copyright ... 8

2.2.4 Design right protection ... 9

3 The principle of free movement of goods ... 11

3.1 The TEU, the TFEU and the case Cassis de Dijon ... 11

3.2 The conflict in relation to intellectual property rights ... 13

3.2.1 Example in relation to patents ... 13

3.2.2 Example in relation to trade marks ... 13

3.2.3 Example in relation to copyright ... 14

3.2.4 Example in relation to design right protection ... 14

3.3 Consent and international exhaustion ... 14

3.4 Existence and exercise of rights ... 15

3.5 Specific subject matter ... 15

3.5.1 Definition in relation to patents ... 15

3.5.2 Definition in relation to trade marks ... 16

3.5.3 Definition in relation to copyright ... 17

3.5.4 Definition in relation to design right protection ... 17

3.6 Inconsistencies between intellectual property rights ... 18

4 Solutions to the conflict ... 19

4.1 Harmonization ... 20

4.2 Unitary intellectual property rights ... 22

5 Conclusion ... 25

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Abbreviations

CDR – Community Design Regulation CPR – Community Patent Regulation CFI – Court of First Instance

ECJ – Court of Justice

EPC – European Patents Convention EPO – European Patent Office EU – European Union

TEU – Treaty on the European Union

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1 Introduction

1.1 Background

The numerous wars that tormented Europe during the 20th _{century did not only result in}

death and destruction, but also a motivation to create a more peaceful and stable environ-ment in which the different countries could develop and prosper.1 _{Instead of unifying}

Europe by means of violence, peaceful measures began to evolve. The first steps towards the European Union (EU) of today were taken in the 1950s,2_{and in 1993 it was established}

under its current name.3 _{The core of the EU is to create a common market between the}

Member States.4_{The benefits of achieving economic integration are many. It provides for}

companies to grow and specialize, and thereby to compete internationally. This in turn cre-ates a dynamic and competitive market for the benefit of producers, consumers and the Member States themselves.5

Essential to the economic ideals of creating a single trading block is the principle of free movement of goods, providing the infrastructure and constituting the very foundation of the EU. Obstacles to the freedom of movement of all factors of production are to be abol-ished; the Treaty on the functioning of the European Union (TFEU) expressly states that trade barriers between Member States should not exist.6 _{This has, however, proved to be}

much more of a challenge than first expected, especially when it comes to intellectual prop-erty rights.7

The general nature of intellectual property rights is to give the owner a monopoly in the subject matter of the right for a defined period of time,8often limited to the territory of a

1_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 6.} 2_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 9.} 3_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 36.} 4_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 254.} 5_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 251.} 6_{Treaty on European Union, article 3 (2).}

7_{MacQueen, Hector, Waelde Charlotte, Laurie, Graeme, ContemporaryIntellectual Property, Lawand Policy,}

Sec-ond Edition, Oxford University Press 2010, p. 852.

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Member State.9_{For example, the owner of a trade mark, patent, copyright or design right is}

able to use these rights to prevent goods, marketed under a similar mark, infringing the patent, protected by copyright or incorporating the design right, from entering a Member State in which the right subsists.10_{Such an outcome would partition the common market}

and thereby create an obvious conflict between the principle of free movement of goods and intellectual property rights.

In order to solve this conflict, derogations from the principle of free movement of goods are justified on various grounds, inconsistent between different intellectual property rights, outlined in the TFEU and subsequent case law. In other words, not only are there inconsis-tencies between different national laws within the field of intellectual property rights, but also between the four principal forms of patents, trade marks, copyright and design right protection.

Measures of harmonization and unification began to evolve a few decades ago, and as of today the EU has reached a position where evaluation can be made in some areas whereas development continues in others. The common denominator and questioned to be asked is, however, whether or not the inconsistencies outlined above, from the perspective of a company, are defensible and what would constitute the ultimate solution to the conflict.

1.2 Purpose and limitation

The purpose of this bachelor’s thesis is to investigate and outline the inconsistencies be-tween intellectual property rights in terms of derogations from the principle of free move-ment of goods within the EU. As explained in the introduction, the inconsistencies are caused partly by discrepancies in national legislation and partly by differences between the four principal forms of intellectual property rights. The focal point is aimed toward both of these inconsistencies and whether or not, from the perspective of a company, they are jus-tified. Furthermore, the derogations from the principle of free movement of goods are compared to harmonization and unitary intellectual property rights as solutions to the con-flict.

9_{Keeling, David T., Intellectual PropertyRights in EU Law, Free Movement and Competition Law, First Edition,}

Ox-ford 2003, p. 23.

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The areas of patents, trade marks, copyright and design right protection are included. The background information regarding these provides, however, no more than basic informa-tion about the purpose and subject matter. Consent and internainforma-tional exhausinforma-tion are two other concepts that are not explained in depth, nor is the general justification of intellectual property rights in relation to the principle of free movement of goods. When it comes to the grounds on which derogations from the principle of free movement of goods are justi-fied, stated in article 30 of the TFEU and the case Cassis de Dijon,11_{only the concept of}

pro-tection of industrial and commercial property is of interest. Among the three methods of harmonization, the main focus is directed toward the method of complete harmonization. The reason for these limitations is that a deeper understanding of the subject is not needed in order to understand the conflict between the principle of free movement of goods and intellectual property rights.

The two main principles in the field of EU that often come into conflict with intellectual property rights are the principle that trade in goods and services between Member States should not be impeded without proper justification and the principle that competition should not be distorted by agreements in restraint of trade or by abusive practices on the part of dominant undertakings. Since this bachelor’s thesis is built around the principle of free movement of goods, neither the principle of free movement of services nor competi-tion law will be considered. Regarding the latter, the policy of securing the principle of free movement of goods is in fact an objective distinct from that sought by the rules of compe-tition.12

Finally, intellectual property rights are not a regional but a national matter and, beyond that, an international concern.13_{This bachelor’s thesis is, however, limited to the borders of the}

EU. Interactions in relation to third countries will therefore not be considered.

1.3 Method and material

This bachelor’s thesis is based upon comparisons between different legal sources within the field of intellectual property rights in the EU. The main sources used are the primary

legis-11_{Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltungfür Branntwein [1979].}

12_{Cornish, William, Llewelyn, David, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, Sixth}

Edition, Sweet & Maxwell 2007, p. 47.

13_{Harmonization and intellectual propertyin Europe, article from the Columbia Journal of European Law,}

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lation of the TEU, the TFEU, the European Patent Convention14 _{(EPC) and the Berne}

Convention,15 _{along with case law from the Court of Justice (ECJ) and the Court of First}

Instance (CFI) in order to interpret the treaties. The secondary legislation used is the Community Design Regulation (CDR), the Trade mark directive of 2008,16_{the directive on}

the legal protection of designs of 199817_{and the Copyright directives of 2001}18_{and 2006.}19

In other words, except from the EPC and the Berne Convention the legal material used originates exclusively from the EU. National lawis not used other than in a general fashion in order to illustrate the conflict between the principle of free movement of goods and in-tellectual property rights through examples.

Relevant literature and internet sources on the subject are used together with articles in or-der to explain the interaction between intellectual property rights and EU-law, and possible solutions to the conflict. Finally, and as a result of the latter, a proposal regarding the Community patent will also be studied.

14_{Convention on the grant of European Patents, 1973.}

15_{Berne Convention for the Protection of Literary and Artistic Works, 1886.}

16_{Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate}

the laws of the Member States relating to trade marks.

17_{Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal}

protection of designs.

18_{Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the}

harmonisation of certain aspects of copyright and related rights in the information society.

19_{Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term}

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2 Intellectual property rights

2.1 Justifications

The conflict between the principle of free movement of goods and intellectual property rights is the main reason as to why the EU has taken increased interest in this area of trade law.20 _{The balancing act between the moral and ethical, or fundamental, reasons for}

pro-tecting intellectual property rights on the one hand and the aim toward economic integra-tion on the other is by no means an easy task. Some legal and political philosophers have even questioned the very existence of intellectual property rights,21_{and argued that they act}

as barriers to trade and are not justified in the form they currently take.22 _{But although}

in-tellectual property rights by its nature have the potential to interfere with the aims of the common market, or a single European market with no internal frontiers or national barriers to trade,23_{it can also be argued that they work the other way around and in fact stimulate}

the economy.24 _{For example, patents acts as an incentive for the inventors and secures}

in-dustrial progress,25_{trade marks as an indicator of origin and a guarantee of quality for the}

consumer,26_{copyright as an incentive for creative works}27_{and design right protection as an}

incentive for work of appearance and composition.28 _{As can be seen from the examples}

above, intellectual property rights have different purposes and thus different subject matter.

21_{Bentley, Lionel, Sherman, Brad, Intellectual PropertyLaw, Second Edition, Oxford University Press 2004, p. 3.} 22_{Bentley, Lionel, Sherman, Brad, Intellectual PropertyLaw, Second Edition, Oxford University Press 2004, p. 4.} 23_{Bentley, Lionel, Sherman, Brad, Intellectual PropertyLaw, Second Edition, Oxford University Press 2004, p.}

12.

24_{Fazzani, Linda, Hart, Tina, Intellectual PropertyLaw, Third Edition, Palgrave Macmillan 2004, p. 3.}

25_{Aplin, Tanya, Davies, Jennifer, Intellectual PropertyLaw, Text, Cases and Materials, First Edition, Oxford}

Uni-versity Press 2009, p. 447.

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2.2 Purpose and subject matter

2.2.1 Patents

The purpose of patents is to give the rightholder an absolute monopoly over a commercial exploitation of an invention for a limited period of time of 20 years.29 _{According to the}

EPC, the subject matter that may be protected by a patent is inventions which are new, in-volves an inventive step and are capable of industrial application.30_{Inventions are considered to}

be newif they are not part of the state of art,31_{to involve an inventive step if it is not obvious}

to a person skilled in the art,32_{and capable of industrial application if it can be made or used in}

any kind of industry.33_{The state of art comprises everything made available to the public in}

any way before the date of filing of the European patent application,34_{whereas the person}

skilled in the art is an ordinary member of their field, aware of everything in the state of art but unimaginative and lacking of inventive capacity.35_{It is also expressly stated what are not}

to be regarded as inventions, for example discoveries, scientific theories, mathematical me-thods, aesthetic creations and presentation of information.36_{Patents have no specific notice}

once granted, but the term patent pending is commonly used to put competitors on notice that an application is being considered.37_{In other words, patents require registration in}

or-der to subsist.

2.2.2 Trade marks

Trade marks give the rightholder a weaker monopoly than patents, but can through succes-sive periods of registration last for an unlimited period of time.38 _{The purpose of trade}

30_{Convention on the grant of European Patents, 1973, article 52 (1).} 31_{Convention on the grant of European Patents, 1973, article 54 (1).} 32_{Convention on the grant of European Patents, 1973, article 56.} 33_{Convention on the grant of European Patents, 1973, article 57.} 34_{Convention on the grant of European Patents, 1973, article 54 (2).}

36_{Convention on the grant of European Patents, 1973, article 52 (2).}

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marks is to indicate the origin of goods, and thus be a quality indicator for the benefit of the consumers, along with providing means of advertising and a vehicle for investment.39 _The

badge of origin is the primary function of a trade mark.40 _{It provides a guarantee of the}

identity of the origin of the marketed product and enables consumers to distinguish the product from others.41 _{Since the interest of the consumer is based on the assumption that}

goods of the same origin will be of the same standard, the function of quality is how trade marks reward the manufacturer who consistently produces high-quality goods.42

Advertis-ing is a function in which many rightholders invest substantial time, effort and money, in a hope that the mere recognition of the trade mark eventually will sell the goods in question. Finally, the function of investment is a way to build consumer awareness, or reputation, of a particular trade mark. The last three functions are also known as communicative func-tions, and focuses as much on the effect on the consumers as on competitors taking unfair advantage or being detrimental to the trade mark.43 _{The subject matter that may be}

pro-tected by a trade mark is any sign capable of being represented graphically, for example personal names, designs, letters, numerals, the shape of goods or of their packaging.44

Examples of signs not to be regarded as trade marks are them which are devoid of any distinctive character or contrary to public policy.45

Trade marks can be either registered or unregistered. ® is the notice of the former and has to meet the requirements outlined above. ™ is the notice of the latter and commonly used when a trade mark has been refused or if the rightholder do not want to spend the time and money needed in order to register. Within the EU, the symbol of the unregistered trade mark has no legal effect at all.46

41_{Case C-206/01, Arsenal Football Club plc v. MatthewReed [2003], para. 47.} 42_{Case C-10/89, SA Cnl-Sucal NV v. HagGF AG [1991].}

44_{Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, article 4.} 45_{Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, article 7.} 46_{MacQueen, Hector, Waelde Charlotte, Laurie, Graeme, ContemporaryIntellectual Property, Lawand Policy,}

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2.2.3 Copyright

Similar to trade marks, copyright gives the rightholder a weaker monopoly than patents, but for a longer period of time of seventy years from the death of the author of the work.47

The latter is a level reached as soon as an expression is able to stand on its own,48_{and a}

re-quirement that has to be met along with them of fixation and originality. In other words, the work in question must be transformed into some kind of fixed form, for example be writ-ten down, recorded or filmed,49 and not be a copy of preceding works in order for copy-right to subsist.50_{In fact, and as suggested by the word itself, the very purpose of copyright}

is to prevent copying and reproducing.51_{The subject matter that may be protected by}

copy-right is aesthetic and artistic creations,52_{for example original literary, dramatic, musical and}

artistic work, films, sound recordings and broadcasts.53_{Unique for copyright, introduced by}

the Berne Convention, is the concept of moral rights, recognizing certain non-economic rights which the author can continue to exercise even though no longer the rightholder,54

for example the right to object derogatory treatment of the work in question.55

When it comes to registration, copyright arises automatically as soon as a qualifying work is created.56_{© is the notice of copyright, used in order to gain international recognition and}

47_{Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term}

of protection of copyright and certain related rights.

49_{Fazzani, Linda, Hart, Tina, Intellectual PropertyLaw, Third Edition, Palgrave Macmillan 2004, p. 149.} 50_{MacQueen, Hector, Waelde Charlotte, Laurie, Graeme, ContemporaryIntellectual Property, Lawand Policy,}

51_{Fazzani, Linda, Hart, Tina, Intellectual PropertyLaw, Third Edition, Palgrave Macmillan 2004, p. 149.} 52_{MacQueen, Hector, Waelde Charlotte, Laurie, Graeme, ContemporaryIntellectual Property, Lawand Policy,}

53_{Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the}

55_{Berne Convention for the Protection of Literary and Artistic Works, 1886, article 6bis.} 56_{Berne Convention for the Protection of Literary and Artistic Works, 1886, article 5 (2).}

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reciprocity of protection. The symbol should appear together with the name of the author and the date when the work was first made publicly available.57

2.2.4 Design right protection

Similar to trade marks and copyright, design right protection gives the rightholder a weaker monopoly than patents. The purpose of design rights is to protect the appearance and composition of designs in a vast range of fields, from fashion and interior to industrial and software design.58 A design right can be either registered or unregistered, but not in the same way as for trade marks. In order to be registered the design must, due to the CDR, be new and have individual character.59 _{Furthermore, it has to fall within the definition of a}

de-sign.60_{The meaning of the latter is the appearance of the whole or a part of a product,}

result-ing from, among other thresult-ings, its features of lines, contours, colours, shape or texture.61

The product is in turn defined as any industrial handicraft item other than a computer pro-gram.62_{When it comes to novelty and individual character, a design is regarded as newif no}

identical design has been available to the public before the date of application,63_{and as}

hav-ing individual character if the overall impression differs from the overall impression of pre-vious designs.64_{Registered designs give the rightholder a monopoly for a limited period of}

time of twenty-five years.65_{Unregistered designs are defined in the same way as registered}

designs,66_{but only give the rightholder a monopoly for a limited time of three years.}67_The

main reason for the existence of unregistered design rights is that the design in question is

58_{Seville, Catherine, EU Intellectual Property, Lawand Policy, First Edition, Elgar European Law2009, p. 180.} 59_{Community Design Regulation 2002, article 4 (1).}

60_{Community Design Regulation 2002, article 4 (1).} 61_{Community Design Regulation 2002, article 3 (a).} 62_{Community Design Regulation 2002, article 3 (b).} 63_{Community Design Regulation 2002, article 5.} 64_{Community Design Regulation 2002, article 6 (1).} 65_{Community Design Regulation 2002, article 12 (1).}

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being market-tested prior to registration.68 _{Examples of designs not to be protected are}

those dictated solely by its technical function69_{or contrary to public policy.}70

69_{Community Design Regulation 2002, article 8 (1).} 70_{Community Design Regulation 2002, article 9.}

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3 The principle of free movement of goods

3.1 The TEU, the TFEU and the case Cassis de Dijon

The two treaties constituting the basis of the EU are the TEU and the TFEU.71_{The main}

principle of the TEU is to establish the EU among the Member States.72 _{From a strictly}

economic perspective the EU has as its task to, by establishing a common market and an economic union, promote a balanced and sustainable development of economic activities, a high degree of competitiveness and convergence of economic performance and economic and social cohesion and solidarity among the Member States.73 _{The principle of free}

movement of goods in relation to the common market is stated in article 3 (2) of the TFEU:

The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provi-sions of the Treaties.

Due to the case Commission v. United Kingdom,74 _{and in the absence of harmonization and}

unitary intellectual property rights, article 345 of the TFEU gives the Member States exclu-sive competence as long as the principle of free movement of goods is not harmfully af-fected:

This Treaty shall in no way prejudice the rules in Member States governing the system of propertyownership.

Part three of the TFEU focuses upon union principles and is divided into twenty four ti-tles, the second one devoted in its entirety to the principle of free movement of goods. Similar to article 3 of the TEU, articles 34 and 35 of the TFEU states that quantitative restric-tions on imports, exports and all measures having equivalent effect shall be prohibited between Member States. The concept of quantitative restrictions means quotas and prohibitions75

71_{Foundation for EU democracy, 23/4 2011,}_{http:/ / www.ffeud.eu/ stealth.php.} 72_{Treaty on European Union, article 1.}

73_{Treaty on European Union, article 2.}

74_{Case C-30/90, Commission v. United Kingdom [1992], para. 18.}

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and is, due to the case Geddo v. Ente Nazionale Risi,76 _{the same in relation to both imports}

and exports. When it comes to measures having equivalent effect, however, the ECJ has always taken a less strict attitude in relation to exports than in relation to imports, possibly because Member States are less likely to hinder exports.77 _{In case law the ECJ has stated}

that article 35 only applies to measures specifically constructed to restrict exports,78_whereas

article 34 has been given a much wider definition. In the case Procureur du Roi v. Dassonville79

the ECJ stated that article 34 applies to all trading rules capable of hindering trade between Member States. Exceptions to these prohibitions are outlined on certain grounds in article 36:

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the tection of national treasures possessingartistic, historic or archaeological value; or the pro-tection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

In other words, quantitative restrictions on imports, exports and all measures having equivalent effect are prohibited within the EU, unless they are justified by article 36. This was at least the case until the ECJ, in the case Cassis de Dijon,80 _{recognized additional}

grounds, or mandatory requirements, on which a measure restricting trade could be justified. The meaning of this concept is that measures acting as barriers to trade may be acceptable if they protect a certain interest that the Member State has the right to protect,81_for

exam-ple the effectiveness of fiscal supervision, the protection of public health, the fairness of consumer transactions and the defence of the consumer.82 _{The main focus of this}

bache-lor’s thesis is, however, directed toward article 36 and the concept of protection of industrial 76_{Case 2/73, Riseria Luigi Geddo v. Ente Nazionale Risi [1973].}

Ox-ford 2003, p. 11.

78_{Case 15/79, Groenveld v. Produktschap voor Vee en Vlees [1979].} 79_{Case 8/74, Procureur du Roi v. Benoît and Gustave Dassonville [1974].}

80_{Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltungfür Branntwein [1979].}

81_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 281.} 82_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 282.}

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and commercial property, applicable to all rights of intellectual property.83_{The expressions}

arbi-trary discrimination and disguised restriction therefore need to be clarified. The first is defined as a difference in treatment which is not objectively justified,84 _{for example a Member State}

that applies higher levels of environmental requirements to imported goods within the EU than to domestic goods. The latter is defined as a measure that is protectionist in intent,85

for example a rightholder who uses his trade mark in order to block parallel imports of goods, marketed under that trade mark, from a Member State in which the prices are lower.86

3.2 The conflict in relation to intellectual property rights

3.2.1 Example in relation to patents

Company A has a patent in Sweden, but not in Finland. Company B manufactures goods, incorporating the patented invention, and markets them in Finland. Company C buys and imports the goods into Sweden. As a result of this, company A sues company C for patent infringement. If company A were to succeed and thereby prevent company C from import-ing the goods into Sweden, the free movement of goods between the Member States will be restricted. On the other hand, if company C were allowed to import the goods into Sweden the value of company A: s patent would have been impaired.

3.2.2 Example in relation to trade marks

Company A manufactures goods in Sweden and markets them under a registered trade mark. Company B manufactures similar goods in Finland and markets it under a similar mark. In other words, it is likely that consumers would be confused if the goods were on the market in the same Member State. This is a situation unsatisfactory for both compa-nies, but if company A were allowed to exclude company B, and vice versa, the free movement of goods between the Member States would have been restricted.

83_{European Parliament, 18/4 2011,}

http:/ / circa.europa.eu/ irc/ opoce/ fact_sheets/ info/ data/ market/ legislation/ article_7203_en.htm.

Ox-ford 2003, p. 17.

85_{Case 40/82, Commission v. United Kingdom [1982].}

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3.2.3 Example in relation to copyright

Company A is the owner of a copyright in Sweden, a country that in this example has a longer duration of the exclusive right than Finland. If company A were allowed to prevent Company B from importing goods no longer protected by the copyright in Finland into Sweden, the free movement of goods between the Member States would have been re-stricted.

3.2.4 Example in relation to design right protection

Company A has a design right that extend to the manufacture of different auto parts for their cars in Sweden. Company B is an independent manufacturer of different auto parts for the same types of cars in Finland, and exports the goods to Sweden. Company A sues company B for design right infringement. If company A were to succeed and thereby pre-vent company B from exporting the goods to Sweden, the free movement of goods be-tween the Member States will be restricted. On the other hand, if company B were allowed to export the goods to Sweden the value of company A’s design right would have been im-paired.

3.3 Consent and international exhaustion

If company A were allowed to hinder the importation into and exportation to Sweden in the examples above, a measure having equivalent effect to the quantitative restrictions stated in articles 34 and 35 would arise. As stated in part 3.1, such a measure is only com-patible with EU trade lawif it is justifiable under article 36 or the case Cassis de Dijon,87

pro-vided that the goods in question have been lawfully placed on the market in another Mem-ber State.88_{In other words, consent is a central concept of the principle of free movement of}

goods. Where protected goods have been placed on the market by, or with the consent of, the rightholder, no objection to further movement of goods within the common market is allowed.89_{In this case, the rightholder has exhausted its rights and can no longer control the}

87_{Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltungfür Branntwein [1979].}

Ox-ford 2003, p. 23.

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resale, importation or exportation of the goods.90_{This is the case for all types of intellectual}

property rights.91

3.4 Existence and exercise of rights

An intellectual property right consists not only of a single right, but of several rights whose content may vary under national legislation and between patents, trade marks, copyright and design right protection.92 As a result of this, the ECJ has developed a difference be-tween the existence and the exercise of a right through case law.93

It is expressly stated in article 345 that the existence of a right, recognized under national legislation, is not affected by the TFEU. But the exercise of a right may, however, be re-stricted by the prohibitions in the TFEU. Article 36 and the case Cassis de Dijon94only ad-mits exceptions to the principle of free movement of goods if they are justified for the purpose of protecting rights which constitute the specific subject matter of the property in question.95 _{In other words the existence of the specific subject matter is guaranteed,}

whereas the exercise of national intellectual property rights is only guaranteed if they con-stitute the specific subject matter.96

3.5 Specific subject matter

3.5.1 Definition in relation to patents

In the case Centrafarm v. Sterling97_{the ECJ stated that the specific subject matter in relation}

to patents is:98

the guarantee that the patentee, to reward the creative effort of the inventor, has the ex-clusive right to use an invention with a view to manufacturing industrial products and

90_{Bentley, Lionel, Sherman, Brad, Intellectual PropertyLaw, Second Edition, Oxford University Press 2004, p.}

13.

91_{Case 78/70, Deutsche Grammophon GmbH v. Metro SB Grossmarkte GmbH & Co. [1971].}

92_{Seville, Catherine, EU Intellectual Property, Lawand Policy, First Edition, Elgar European Law2009, p. 321.} 93_{Case C-119/75, Terrapin Ltd v. Terranova Industrie CA Kapferer & Co. [1975].}

94_{Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltungfür Branntwein [1979].} 95_{Case C-119/75, Terrapin Ltd v. Terranova Industrie CA Kapferer & Co. [1975].}

96_{Seville, Catherine, EU Intellectual Property, Lawand Policy, First Edition, Elgar European Law2009, p. 322.} 97_{Case 15/74, Centrafarm BV v. SterlingDrugInc. [1974].}

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puttingthem into circulation for the first time, either directlyor bythe grant of licences to third parties, as well as the right to oppose infringements.99

Two main rights for the patentee can be identified from this statement; the right to put the products derived from the invention into circulation for the first time and the right to op-pose infringements. The specific subject matter in this regard is to reward the creative ef-fort of the inventor, but this does not extend to the right for the patentee to control the products after they have been placed on the market. As long as the products have been put into circulation by patentee himself or with his consent, derogation from the principle of free movement of goods is unjustified.100

3.5.2 Definition in relation to trade marks

In the case Centrafarm v. Winthrop101the ECJ stated that the specific subject matter in rela-tion to trade marks is:102

the specific subject matter of the industrial propertyis the guarantee that the owner of the trade mark has the exclusive right to use that trade mark, for the purpose of putting products protected by the trade mark into circulation for the first time, and is therefore intended to protect him against competitors wishing to take advantage of the status and reputation of the trade mark bysellingproducts illegallybearingthat trade mark.103

Two main rights for the trade mark owner can be identified from this statement; the right to put products protected by the trade mark into circulation for the first time and the right to hinder competitors to take advantage of the trade mark. In the same way as for patents, trade marks are not allowed to hinder the movement of protected products, marketed by the owner or with his consent, between Member States.104

99_{Case 15/74, Centrafarm BV v. SterlingDrugInc. [1974], para 9.} 100_{Case 15/74, Centrafarm BV v. SterlingDrugInc. [1974], para 11.} 101_{Case 16/74, Centrafarm BV v Winthrop BV [1974], para. 8.}

102_{Seville, Catherine, EU Intellectual Property, Lawand Policy, First Edition, Elgar European Law2009, p. 323.} 103_{Case 16/74, Centrafarm BV v Winthrop BV [1974], para 8.}

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3.5.3 Definition in relation to copyright

In the case Phil Collins v. Imtrat105_{the ECJ stated that the specific subject matter in relation}

to copyright is:106

to ensure the protection of the moral and economic rights of their holders. The protection of moral rights enables authors and performers, in particular, to object to anydistortion, mutilation or other modification of a work which would be prejudicial to their honour or reputation. Copyright and related rights are also economic in nature, in that they confer the right to exploit commerciallythe marketingof the protected work, particularlyin the form of licences granted in return for payment of royalties.107

Two main rights for the copyright owner can be identified from this statement; the right to protection of moral rights and the right to exploit commercially the marketing of the pro-tected work. In other words, and as stated by the CFI in subsequent case law, copyright af-fords the creator of original works the exclusive right to exploitation in order to reward the creative effort.108_{Similar to patents and trade marks, copyright is not allowed to hinder the}

movement of protected products between Member States.109

3.5.4 Definition in relation to design right protection

In the case Volvo v. Veng110_{the ECJ stated that the specific subject matter in relation to}

de-sign right protection is:111

the right of the proprietor of a protected design to prevent third parties from manufacturing and sellingor importing, without his consent, products incorporatingthe design.112

The main right for the owner of the design right protection identified from this statement is the right to prevent production of products incorporating the design. In the same way as for patents and trade marks, and similar to copyright, design right protection is not allowed 105_{Joined Cases C-92/92 and C-326/92, Phil Collins v. Imtrat [1993], para. 20.}

106_{Seville, Catherine, EU Intellectual Property, Lawand Policy, First Edition, Elgar European Law2009, p. 324.} 107_{Joined Cases C-92/92 and C-326/92, Phil Collins v. Imtrat [1993], para. 20.}

108_{Case T-184/01, IMS Health Inc. v. Commission [2001], para. 125.}

109_{Case 78/70, Deutsche Grammophon GmbH v. Metro SB Grossmarkte GmbH & Co. [1971], paras. 11 and 12.} 110_{Case 238/87, Volvo v. Erik VengLtd [1988].}

111_{Seville, Catherine, EU Intellectual Property, Lawand Policy, First Edition, Elgar European Law2009, p. 325.} 112_{Case 238/87, Volvo v. Erik VengLtd [1988], para. 8.}

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to hinder the movement of protected products marketed by the owner, or with is consent, between Member States.113

3.6 Inconsistencies between intellectual property rights

As can be seen from the examples in part 3.2 and the definitions in part 3.5, there are sev-eral inconsistencies but also many similarities between intellectual property rights in the EU. For example, whereas patents, trade marks and design right protection focuses on preventing infringements of the patent, competitors from taking advantage of the trade mark and products incorporating the design, copyright is unique in the introduction of the concept of moral rights.

Part 2.2 clearly shows that it is not only the specific subject matter that differs, but also the qualification, procedure, form, duration, width and notices of protection.114 _{For example,}

whereas a copyright is valid not only in the EU, but in all of the 160 countries throughout the world that has signed the Berne Convention for 70 years plus the life of the author as soon as the production meets the requirements of being a work, a patent is only valid for a limited time of 20 years in each and every Member State in which protection has been sought. Furthermore, the ECJ has stated that, in the absence of harmonization and unitary intellectual property rights, it is for national law to determine procedures and conditions surrounding grants of intellectual property rights.115 _{In other words, it is possible that}

in-consistencies in terms of derogations from the principle of free movement of goods within the EU exists not only between the various types of intellectual property rights, but also be-tween the same types of protection in relation to different Member States.

113_{Case 238/87, Volvo v. Erik VengLtd [1988], para. 8.}

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4 Solutions to the conflict

As stated in the introduction, one of the main goals of the EU is to create a common mar-ket between the Member States.116_{This is the third step in the progress towards economic}

integration, and adds the free movement of all factors of production to the first two steps of establishing a free trade area and a customs union. The free trade area involves the removal of customs duties between the Member States, even though the Member States still are al-lowed to decide their external policies and custom duties in relation to third countries indi-vidually.117 _{The customs union adds a common external tariff to the free trade area, were}

the same duties are imposed on goods entering the EU regardless of where the importing or exporting country is situated. The final step is to achieve an economic union, involving all of the above along with the harmonization or unification of economic, monetary and fiscal policies.118_{As of today, the EU has established a free trade area}119_{and a customs}

un-ion,120 _{and is approaching the penultimate step of the ladder. But there are still a great}

number of obstacles to overcome in order to create a common market,121_{one of the most}

obvious being the conflict between the principle of free movement of goods and intellec-tual property rights.

In order to solve this conflict, and at the same time take into account article 345 in the TFEU, the ECJ has decided to focus upon the reason for the existence, along with the spe-cific subject matter, of intellectual property rights. Since the core of intellectual property rights is to obtain economic return, the articles of the treaties outlined in part 3.1 and the case lawfrom the ECJ on the conflict between intellectual property rights and the principle of free movement of goods gives the rightholder the exclusive right to place the goods in question on the common market for the first time. Thereafter the rightholder has ex-hausted the rights conferred by the patent, trade mark, copyright or design right in relation to the movement throughout the EU, as explained in part 3.3.122 _{This solution does not,}

116_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 254.} 117_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 253.} 118_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 254.} 119_{Treaty on the functioning of the European Union, article 26 (2).}

120_{Treaty on the functioning of the European Union, article 28 (1).}

121_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 254.}

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however, solve the aspects of the conflict outlined through the examples in part 3.2. More suitable in this regard would instead be the concept of harmonization.

4.1 Harmonization

The concept of harmonization is often divided into three different forms; complete, op-tional and minimum harmonization. It is easy to understand why complete harmonization is also called exhaustive harmonization. The point of this method is to enact a rule for all Member States of the EU, precluding national legislation in the same area. Less strict is the method of optional harmonization, where the provision of a directive needs only to be fol-lowed when trade of goods is taking place between Member States of the EU. If export or import is not intended, it is optional to follow the provision in question. Finally, the me-thod of minimum harmonization is the same as the establishment of minimum standards which should be seen as a floor rather than a roof. The Member States are at any time free to impose higher domestic standards, but not lower.123 _{The main focus of this bachelor’s}

thesis is, however, directed toward the method of complete harmonization.

Foreign law and languages along with time-consuming and costly procedures are some of the problems, within the field of intellectual property rights, facing companies wanting to expand within the EU.124_{As can be seen from the examples in part 3.2, discrepancies in}

na-tional law in this regard may lead to situations where lawfully produced goods in one Member State become infringing goods when imported to or exported into another Mem-ber State. This would obviously not be a problem if the scope of protection were the same throughout the EU.125

The method of complete harmonization erases the discrepancies between different national laws and thereby ensures that intellectual property rights are granted the same protection in all Member States.126_{The European Patent Convention in 1973, the Trade mark directive}

123_{Foster, Nigel, Foster on EU-law, Second Edition, Oxford University Press 2009, p. 260.} 124_{Gateway to the EU, 2/5 2011,}

http:/ / europa.eu/ legislation_summaries/ internal_market/ businesses/ intellectual_property/ l26033_en.htm.

Oxford 2003, p. 25.

126_{Gateway to the EU, 2/5 2011,}

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in 2008,127 _{the directive on the legal protection of designs in 1998}128 _{and the Copyright}

di-rectives in 2001129_{and 2006}130_{were all initiated for that reason but did not, however, solve}

the conflict between intellectual property rights and the principle of free movement of goods entirely.

Returning to the examples in part 3.2, it goes without saying that a situation where a copy-right in Finland has expired, whilst still in force in Sweden, would not occur if the Member States copyright laws all provided for the same term of protection. Similarly, the problem arising when auto parts are being manufactured in Finland, a country supposed not to ex-tend the exclusive design right to spare parts, and exported to Sweden, a country supposed to extend the exclusive design right to spare parts, would not occur if all Member States granted car makers the exclusive right to manufacture auto parts for their models during the same amount of time or not at all. As long as the law of intellectual property rights is harmonized in all 27 Member States, the conflict between the principle of free movement of goods and intellectual property rights will not exist. Such a solution has been reached by the implementation of the copyright directives in 2001131 _{and 2006}132 _{and the directive on}

the legal protection of designs in 1998,133_{but when it comes to the two remaining examples}

of patents and trade marks harmonization is not what to aim for. The reason for this is that harmonization can solve problems caused by discrepanacies in national law, but do nothing about problems due to the territoriality of intellectual property rights.134 _{For example, a}

patent obtained in Sweden that can prevent goods lawfully produced in Finland from being

127_{Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to}

approximate the laws of the Member States relating to trade marks.

protection of designs.

129 _{Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the}

130_{Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the}

term of protection of copyright and certain related rights.

131 _{Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the}

term of protection of copyright and certain related rights.

protection of designs.

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traded is a problem not to be solved with harmonization, neither is the problem of similar trade marks belonging to unrelated rightholders. In these cases, the solution would instead be the concept of unitaryintellectual propertyrights.

4.2 Unitary intellectual property rights

Whilst the method of complete harmonization solves the problems relating to foreign law, the point of unitary intellectual property rights is to establish a unified system for obtaining uniform protection in the common market.135_{The reason as to why the example in part 3.2}

regarding patents, where a patent obtained in Sweden could prevent goods lawfully pro-duced in Finland from being traded, is not able to be solved by mere harmonization is ob-vious. Suppose that Swedish and Finish patent law were harmonized. As long as Company A does not bother to seek protection in Finland, Company B can still lawfully produce goods which would infringe the patent if exported into Sweden. The same goes for the ex-ample regarding trade marks, the confusion of the consumers is not caused by discrepan-cies in national law but because the trade marks in question have acquired an association with the products of Company A and Company B in different countries. In other words, the problems outlined in these two examples are caused by the territoriality of intellectual property rights and can only be solved by unification.

Most developed of the four principal forms of intellectual property rights in this regard are trade marks and design right protection, followed by patents and copyright. The EU-trade mark was introduced in 1996,136 _{and the EU-design in 2001.}137 _{Prior to these}

establish-ments, a trader wanting to have a trade mark or design right registered throughout the EU had to file an application in each and every Member State.138_{The Community Trade Mark}

Regulation (CTMR) and the Community Design Regulation (CDR) changed this time-consuming and costly procedure, and at the same time solved the problems relating to for-eign languages, by initiating a simple and inexpensive way of registering trade marks and designs with the Office for Harmonization in the Internal Market in Alicante, Spain. Fur-135_{Gateway to the EU, 2/5 2011,}

136_{Wadlow, Christopher, Enforcement of Intellectual Propertyin European and International Law, First Edition, Sweet}

& Maxwell Ltd 1998, p. 214.

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thermore, they put an end to the legal uncertainty caused by differences in national law, by providing equally reliable protection throughout the EU.139

The idea of a Community Patent Regulation (CPR) arose in 2000, when renewed efforts to achieve unification within the area of patents were made by the EU.140_{Earlier attempts of}

creating an Community patent, starting already in the 1950s, have all failed. The main rea-son for this has been that of translation, the fact that a patent had to be translated into each and every EU-language in order to obtain unitary effect was an obstacle to high to over-come.141

A Community patent would be a way for the EU to catch up on foreign markets such as the American and the Japanese in terms of transforming research results and technological and scientific progress into industrial and commercial success stories.142 _{But since 1973,}

when the EPC established the European Patent Office (EPO) in Munich, Germany, the EU has not reached longer than to make it possible for companies to apply for European pa-tents. The meaning of this concept is that only one application and one examination process is needed in order to grant collections of patents, a significant simplification to the earlier system where each and every application had to be granted by the different domestic intel-lectual property offices.143_{Important to point out is, however, that European patents does}

not provide unitary effect throughout the EU. This is the main difference between the CPR establishing the Community patent and the EPC establishing the European patent, since the former would function as a single patent throughout the EU both when it comes to the EPO-process of obtaining and granting and the system of litigation. As of today, a Euro-pean patent can be challenged in each and every country in which it is valid, causing both uncertainty and high costs.144 _{This will all be changed through the establishment of an}

http:/ / europa.eu/ legislation_summaries/ internal_market/ businesses/ intellectual_property/ l26033_en.htm. 140_{Proposal, of 1 August 2000 for a Council Regulation on the Community patent.}

144_{Proposed Communitypatent regulation, article from Times Higher Education, 17/4 2004,} http://www.timeshighereducation.co.uk/story.asp?storyCode=188725&sectioncode=26.

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Community patent court.145 _{Furthermore, calculations show that the Community patent}

will cost no more than a European patent covering five countries, a significant saving.146

The purpose is by no means to replace the existing national and European systems, but to complement them. In other words, the implementation of an Community patent would not change the fact that rightholders are free to choose the patent protection best suited for their needs. The CPR will work alongside the EPC, and the EPO no longer only issue pat-ents of individual Member States but also for the territory of the EU. When it comes to the subject matter, limitations, the application and conditions for granting a patent as outlined in part 2.2, the EPC will still be the used system of law. In the area of copyright, no pro-posal for a unitary right has been made.

145_{Proposal for a Council decision establishing the Community Patent Court and concerning appeals before}

the Court of First Instance.

146_{Proposed Communitypatent regulation, article from Times Higher Education, 17/4 2004,} http://www.timeshighereducation.co.uk/story.asp?storyCode=188725&sectioncode=26.

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5 Conclusion

In the introduction, two questions are raised. The first one relates to the inconsistencies be-tween intellectual property rights and whether or not they are justified from the perspective of a company, the second to the conflict in relation to the principle of free movement of goods and what would constitute the ultimate solution. Three types of inconsistencies are identified in relation to the four principal forms of intellectual property rights. Firstly, the grounds on which derogations from the principle of free movement of goods are allowed are inconsistent between different types of intellectual property rights. Secondly, discrepan-cies in national law cause inconsistendiscrepan-cies not only between different types of intellectual property rights, but also between the same types of protection. Thirdly, there are inconsis-tencies between different types of intellectual property rights as a result of the different level of development in regard of harmonization and unification.

As can be seen in part 2.1 and 3.5, intellectual property rights have different purposes, sub-ject matter and specific subsub-ject matter. The latter is the criteria developed by the ECJ for when the exercise of an intellectual property right is or is not contrary to the principle of free movement of goods and, in the absence of complete harmonization and unitary intel-lectual property rights, the current solution to the conflict. Since the substance varies be-tween different types of intellectual property rights the inconsistent grounds on which derogations from the principle of free movement of goods are allowed have to be regarded as justified. The additional inconsistencies between the four principal forms of intellectual property rights outlined in part 3.6, in terms of the qualification, procedure, form, duration, width and notices of protection, are all justified by the same reason.

When it comes to the inconsistencies caused by discrepancies in national law, progress has been made in all four principal areas of intellectual property rights. The Member States of the EU began working toward harmonization and unification in the areas of patents, trade marks and designs already in the 1950s.147_{A fewdecades later, in the 1990s, the same could}

be said about copyright.148 _{As of today numerous directives and regulations have been}

implemented, and proposals to harmonize and unify the EU even more in the future have 147_{Wadlow, Christopher, Enforcement of Intellectual Propertyin European and International Law, First Edition, Sweet}

& Maxwell Ltd 1998, p. 215.

148_{See for example the Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of}

protection of copyright and certain related rights, repealed by the Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights.

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been made. Patents, trade marks, copyright and design rights have all been harmonized in one way or another, and thereby many of the problems in this regard have been erased. Instead, it is in relation to the next step of creating intellectual property rights with unitary effect throughout the EU where most of the inconsistencies originate today. Whereas Community intellectual property rights have been implemented in the areas of trade marks and design right protection, the areas of patents and copyright are still a long way from the same level of unification. As far as copyright goes it is understandable, it is simply not in the need for unification in the same way as trade marks and design right protection since harmonization solve most of the problems. For example, the term of protection for the same types of work begins simultaneously149 _{and lasts for the same amount of time in all}

Member States.150_{Furthermore, neither a harmonized nor unified process of registration is}

needed since copyright arises automatically as soon as a qualifying work is created.151_When

it comes to patents, however, there is a significantly greater need for unification and a Community patent, and even the establishment of an Community patent court,152_{has been}

worked on for more than a decade.153_{In other words, the unification of intellectual}

proper-ty rights is a long and laborious process that may never complement the current system entire-ly. This is an important word in this regard, since the purpose of the unitary intellectual property rights is not to replace the national laws, but to stand alongside them. The rightholders will still be free to choose the type of protection best suited for their needs and in the absence of unitary intellectual property rights it is for national law to determine procedures and conditions surrounding grants of intellectual property rights.154_{Therefore a}

combination between complete harmonization and the initiation of unitary intellectual property rights would be the ultimate solution to the conflict in relation to the principle of free movement of goods. The EU has come a long way, but whether or not it will ever reach the final step an economic union, including a single patent legally valid throughout 149_{Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the}

term of protection of copyright and certain related rights, article 8.

term of protection of copyright and certain related rights, article 1.

151_{Berne Convention for the Protection of Literary and Artistic Works, 1886, article 5 (2).}

152_{Proposal for a Council decision establishing the Community Patent Court and concerning appeals before}

the Court of First Instance.

153_{Proposal, of 1 August 2000 for a Council Regulation on the Community patent.}

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the EU and a centralized system of litigation along with a Community copyright, is for the future to reveal.

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References

Primary legislation

Treaty on European Union, 2009.

Treaty on the functioning of the European Union, 2009. Convention on the grant of European Patents, 1973.

Berne Convention for the Protection of Literary and Artistic Works, 1886.

Secondary legislation

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark.

Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.

Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks.

Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs.

Case law

Case C-206/01, Arsenal Football Club plc v. MatthewReed [2003], ECR I-10273. Case T-184/01, IMS Health Inc. v. Commission [2001], ECR II-00817.

Joined Cases C-92/92 and C-326/92, Phil Collins v. Imtrat [1993], ECR I-05145. Case C-30/90, Commission v. United Kingdom [1992], ECR I-00829.

Case C-10/89, SA Cnl-Sucal NV v. HagGF AG [1991], ECR I-03711. Case 238/87, Volvo v. Erik VengLtd [1988], ECR-6211.

Case 40/82, Commission v. United Kingdom [1982], ECR-283.

Case 15/79, Groenveld v. Produktschap voor Vee en Vlees [1979], ECR-3409.

Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltungfür Branntwein [1979], ECR-649. Case C-119/75, Terrapin Ltd v. Terranova Industrie CA Kapferer & Co. [1975], ECR I-03657.

Intellectual property rights in the EU : Harmonization and unification instead of inconsistencies?