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Vanderbilt Journal of Transnational Law

First Page

708

Abstract

This study of European Economic Community (EEC) industrial property rights discusses trademarks, patents, and copyrights. The legal foundation for the protection of these industrial property rights in the EEC is derived from article 36 of the EEC Treaty, which expressly allows an exception to the prohibition of restrictions against the free movement of goods within the EEC when justified by the protection of industrial property, and article 222, which encompasses the protection of industrial property in the Member States. Although decisions of the Court of Justice on industrial property rights are infrequent, their ramifications are significant throughout the Community since these decisions necessarily overlap into areas of restrictive trade practices under article 85, abusive exploitation of a dominant position under article 86, and the free movement of goods under articles 30 through 36. A common element in these decisions is the interplay between the exercise of certain industrial property rights that are protected under national laws and the Community mandates for free movement of goods and the elimination of restrictions on trade and competition. To resolve questions on industrial property rights the Court of Justice has drawn and utilized a distinction between the existence of an industrial property right, which is within the sphere of national law, and the exercise of an industrial property right, which may fall within the ambit of Community law and regulation. Moreover, as the Court of Justice has interpreted Community law on industrial property, there has been a concomitant diminution of the territorial principle inherent in national protection of industrial property.

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