Trademark Exhaustion and Its Interface with EU Competition Law

Posted by Social Science Research Network

Trademark Exhaustion and Its Interface with EU Competition Law

Apostolos Chronopoulos & Spyros M. Maniatis (University of London)
Abstract:       The paper traces the evolution of the exhaustion doctrine in EU trademark law and examines its dialectic with the treatment of vertical restraints under EU competition law.

From a rigid rule not allowing the trademark proprietor to control the further commercialization of a trademarked good after its initial sale, the exhaustion doctrine in the EU has gradually developed to complex set of sub-rules balancing the diverse interests of traders, parallel importers, and the consuming public in a manner that resembles market regulation through unfair competition norms. In similar vein, the doctrine of exhaustion should encompass the potential benefits of post-sale restraints. The paper contains a critical analysis of the Court of Appeal’s ruling in Speciality European Pharma Ltd v Doncaster Pharmaceuticals Group Ltd & Madaus GmbH [2015] EWCA CIV 54.