Chapter

The dichotomy between the existence of the right and its exercise

David T. Keeling

in Intellectual Property Rights in EU Law Volume I: Free Movement and Competition Law

Published in print January 2004 | ISBN: 9780198259183
Published online March 2012 | e-ISBN: 9780191681912 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198259183.003.0005

Series: Oxford European Union Law Library

The dichotomy between the existence of the right and its exercise

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It is clear from Article 30 that a balance must be struck between the principle of free movement and the protection of intellectual property rights. Since the mid-1960s the European Court of Justice has been in search of the correct balance. It has not always found the task easy. In order to determine what restrictions on free movement are ‘justified’ under Article 30, the Court has developed a number of tests. None of those tests has proved entirely satisfactory, mainly because of the extreme vagueness of some of the terms used in them. The Court's approach has fluctuated over the years and it has not always shown great fidelity to the various tests that it has elaborated. The overall impression one has is that the Court is still searching for wisdom in this difficult area.

Keywords: intellectual property rights; European Court of Justice; free movement of goods; Article 30; competition law; trade mark

Chapter.  4973 words. 

Subjects: Intellectual Property Law

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