IP RIGHTS WITHIN THE FRAMEWORK OF THE EUROPEAN UNION

IP rights within the framework of the European Union

Instructions:-

This is a group work: We are focussing at IP rights within the framework of the European Union in relation “specifically to Free movement of goods and competition law”:
“If a right related to copyright is relied upon to prevent the marketing in a Member State of products distributed by the holder of the right or with his consent on the territory of another Member State on the sole ground that such distribution did not take place on the national territory, such a prohibition, which would legitimise the isolation of national markets, would be repugnant to the essential purpose of the Treaty, which is to unite national markets into a Single Market”. Deutsche Grammophon v Metro [1971] ECR 487

Wright a report which analyses how successful the European Court has been in balancing these competing interests in conjunction with Treaty Obligations. In light of the above statement by the European Court of Justice You should:
(a) examine the impact of the free movement of goods principle on intellectual property.
(b) the rights conferred on owners of intellectual property
(c) the conditions for exhaustion of intellectual property rights to occur,
(d) the consequences of exhaustion.

Solution

IP rights within the framework of the European Union

INTRODUCTION

As the International community focuses on the enhancement of economic and political integration and interaction, the creation and implementation of free trade deals have improved significantly. Throughout the 20th century hitherto, regions and states have created free trade agreements (FTAs) that focus on the promotion of economic development, the reduction of poverty, enhancement of free trade between states, innovation, production efficiency, and the liberalization and protection of the environment among other key objectives[1]. However, a great concern in the implementation of such agreements is the issue of intellectual property. The implementation of an efficient FTA requires the inclusion of effective and sufficient protection of a comprehensive intellectual property rights. The intellectual property rights include industrial designs, patents, copyrights, and trademarks, which must require protection without offering barriers to effective lawful business and trade operations[2]. The European Court (EC) implements the law to ensure a balance between treaty obligations and competing interest in the EU. The examination of the impact of the free movement of goods (FMGs) principle on intellectual property, the rights of IP owners, and the factors for the exhaustion of such rights, and the consequences of the exhaustion is critical[3]. This report aims to demonstrate the international legal concepts of free movement of goods, particularly regarding the impact of internationalization of Intellectual Property Rights (IPRs). It is argued that while IPRs are intended to protect the ownership of intangible assets, the principle of free movement of goods stipulates that there should be no trade barriers between Member States and as such, contradictions arise in applying the laws across jurisdictional boundaries. The report offers a detailed analysis of relevant case law used for the assessment of the effectiveness of these rules.

  • LEGISLATIVE FRAMEWORK

2.1       Intellectual Property Owners

Intellectual Property (IP) owners enjoy certain privileges by preventing third parties from carrying out certain acts in relation to their IPRs. 

2.2       Quantitative Restrictions

Under Articles 28-30 of the European Community Treaty Community[4] (E.C.T) quantitative restrictions are prohibited on imports and exports. Article 28[5] prohibits quantitative restrictions on the importation among the ECT community and others with “equivalent effects” to ensure free trade within the single market.  In Procureur du Roi vs Benoît and Gustave Dassonville,for Scotch whisky to be sold, according to Belgian law, a certificate of origin had to be produced[6]. Dassonville purchased Scotch whisky from France with the intention to sell in Belgium.  In order to avoid the restrictions and possible liability in accordance with the Belgium law, the certificate of origin was forged.  The question arose as to whether Belgium law was incompatible with the EU law.  Article 34[7] TFEU prohibits quantitative restrictions on all imports and measures of comparable effect between members. It was further stated that, “All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.”[8]  As a result, it would have been too difficult for any seller to sell Scotch whisky in Belgium than in France because of the enormous cost.  Belgium law was therefore of equivalent effect which ought to be prohibited.

The European Court of Justice (“ECJ”) clarified Article 30 in Centrafarm BV v Sterling Drug[9] Centrafarm imported manufactured products and used patent products belonging to Sterling Drug Inc., therefore gaining a huge benefit because of the price difference.  Sterling Drug agreed for the goods to be marketed in both England and Germany but was not pleased with the lower price of the same products to the Netherlands.  Sterling subsequently brought a lawsuit before the Dutch courts and tried to obtain an injunction against the imports, claiming that this was in violation of its patent rights.  The ECJ held that under EC law, putting goods into circulation into another Member States, was sufficient cause for exhaustion, meaning that Sterling exhausted its right by putting goods into circulation for the first time[10].

2.3       Application of Article 30 of the European Community Treaty by the European Court of Justice

Under Article 30, the ECJ traditionally overrules national laws that govern intellectual property where trademark owners are empowered by those laws to prevent parallel importation within the Community[11].  The ECJ stated that there should be no disguised restrictions or discrimination of trade between Member States.  However, there are exceptions, inter alia, concerning the protection of property.

In the leading case of Deutsche Grammonphon v Metro[12]  under copyright law, the same records were sold by Grammonphon in Germany and France. Polydor, the subsidiary of the company in France, charged a lower prices influenced by a changes in market trends. Metro purchased and sold records from France to Germany at a lower price than Grammonphon charged. Grammonphon used its records copyright to stop the importation and sale of records by Metro. The Court held that Deutche Grammonphon exhausted its copyrights by selling the records in the putting them out on the market in France with its consent and was unable to prevent the importation of records submitted by Metro.

2.4       Articles 81 and 82:

Article 81 prohibits certain types of restrictive agreements for example putting restrictions or control on productions, fixing purchases either directly or indirectly or putting parties at a competitive disadvantage. Article 82 controls abuses of the dominant positions within the Community by for example imposing unfair purchase or imposing a limit on production.

The European Economic Area[13] (EEA) includes equivalent provisions for example under Articles 11-13 and 53 and 54.  Harmonising Directives of intellectual property applies to states of the European Free Trade Agreement (EFTA)[14] regarding nationality and preventative measures against discrimination. These are important factors where there is no harmonization because one Member State may take undue advantage of another Member State by treating other nationals differently from their own nationals.  This may occur where a National State may avoid giving foreign nationals rights in preventing bootleg sale recordings produced in another country.[15]  This could be seen in a previous German copyright law which provided that a non-German was unable to take advantage of any provisions preventing unauthorized recordings from being distributed outside of Germany.  It was argued that these provisions offended Article 12[16] as illustrated in an action on the distribution of bootleg recordings and performances in Germany that was given in the US and the US. The German Court referred to this matter to the ECJ for a preliminary ruling under Article 234[17].  A confirmation was made that this fell within Article 12[18] and consequently non-discrimination rights applied.  Full harmonisation of copyright was not in force however, but intra-Community trade for goods and services was in effect.

  • THE INFLUENCE OF FREE TRADE ON INTELLECTUAL PROPERTY

3.1 Contradiction between IPRs and Principle of Free Trade

The nature of IPRs are to protect the ownership of intangible property such as ideas, interventions, and information.  Article 3 (1) of TFEU[19]   provides that the principle of free movement of goods (FMGs) means that no trade barriers should exist between Member States. The forgoing shows that contradictions are extant as well as with the addition of different national law that exist in each Member State. Accordingly it is worth considering how the ECJ achieves a balance when dealing with regional, national and international matters.

3.2 Existence and Exercise of Rights

In order to balance the existence of the ownership of intangible property as well as the rule of free trade, a key point is to identify whether the IPR is in existence or is being exercised[20]. According to Article 345[21] the existence of a right under national law will not be affected by the TFEU. However, the exercise of a right may be precluded by TFEU. Deutsche Grammophon v Metro[22] states the importance of interpreting the differences between the property rights existence and application in that it is legitimate to affect the exercise of those rights.

3.3 Balancing Justice in Cases

In Centrafarm v. Sterling Drug[23] an inventor has a right to his/her work. The major rights focused on in this case were the rights of the patentee to release the product to the market for the first time and the right to prevent violations. However, it was also stated in the case that the patentee does not have the right to control the product after it has been put on the market. In other words, the principle of FMGs will be legitimate if the patentee has put the product for circulation or it was done with his / her consent. In Centrafarm v. Winthrop[24]the court stated that the subject matter related to trademark rights was the right for the owner to circulate the products under the protection of the trademark as well as the right in preventing competitors from taking any advantage of the trademark. The ECJ in this case noted the exceptions to FMGs law under Article 36 of TFEU[25] relating to certain criteria of product repackaging from using a trademark without the owner’s consent[26].

3.4 Existing Inconsistencies and Similarities – IP and the Principle of FMGs 

Although the courts in Europe have attempted to solve the conflicts between IP and the FMGs principle, there still exists some inconsistencies as well as similarities at the same time which set unclear boundaries between both. One of the factors regarding the inconsistencies is that the courts are not just considering the specific subject matter but also other circumstances for example, procedures, forms and durations  in making pronouncements in this area..

4.0       RIGHTS CONFERRED ON OWNERS OF INTELLECTUAL PROPERTY

The rights conferred on owners of IP depend on the nature of the intangible matter sought to be protected. IPR’s “have been referred to as the public willingness to bestow the status of property on ideas, inventions and creative expressions.”[27]These intangible matters include copyright, patents, trademarks and design.

Early records of formal documentation of IPRs are the Paris Convention[28] and the Berne Convention[29] which illustrate the wide reaching protection conferred on owners of IP within States that were party to the two Conventions. The Paris Convention confers juristic and natural persons who are either nationals of or domiciled in a state that is party to the Convention with protection of industrial property and the advantages that their respective laws grant to nationals in all the other countries of the Union[30]. Another important right conferred in Article 4is the “Convention priority right”, which asserts that an applicant from one contracting State can use its first filing date (in one of the contracting State) as the effective filing date in another contracting State, provided that the applicant, or his successor in title, files a subsequent application within the prescribed time frame from the first filing. The Berne Convention in Article 2(1) provides broad copyright protection to “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.” 8 Like the Paris Convention, the Berne Convention provides for minimum standards such as granting copyright protection for the life of the author plus fifty years, and it also adopts the central principle of national interest[31].

In Deutsche Grammophon v Metrothe Court decided that a conflict exists in the provisions regarding the free movement of goods in the Common Market if a manufacturer of recordings so exercises the exclusive right granted to him by the legislation of a Member State to market protected articles in a manner that prohibits the marketing in that Member State of products that he has sold him himself or sold with his consent in another Member State, solely because this marketing has not occurred in the territory of the first Member State[32].

5.0 CONDITIONS FOR EXHAUSTION OF INTELLECTUAL PROPERTY TO OCCUR

The right to Intellectual Property (IP) can be exhausted wholly or partially within (national) and across (international) markets. Exhaustion is described as one of the restrictions on Intellectual Property Rights which posits that where a product is sold with the consent of the holder of its IP all subsequent activities commercial or otherwise on this product are guided by the principle. Therefore, in effect “after a product covered by an IP right, such as by a patent right, has been sold by the IP right owner or by others with the consent of the owner, the IP right is said to be exhausted. It can no longer be exercised by the owner”[33].

Exhaustion is guided and interpreted by several statutory and case laws. The UK for instance in sections 16 and 18 of the Copyright Designs and Patents Act (CDPA)[34] establishes legislation giving a copyright owner exclusive right to circulate their work to the public and protection against duplication of this right. It specifically provides in Section 18(3)(a)[35] for the principle of exhaustion by stating that the subsequent distribution of copies of a work (such as selling on a purchased copy second-hand) will not infringe the right holder’s distribution right[36].

Conditions for Exhaustion to occur include:

  1. Territorial Conditions

Intellectual property can be limited by geographical location. Nationally based intellectual property rights typically enable companies to time international releases and distinguish prices for different territories or regions. A few have propounded that exhaustion as a result of territorial conditions in itself constitutes a drag on the philosophy of free trade and movement of goods[37]. However, many adjudge it necessary to contain counterfeit or substandard duplications across unsuspecting markets “subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade”[38] (General Exceptions Article XX(d) of the GATT 1997).

  • Parallel Trade Conditions

For the most part the phenomenon of global trade is a key influencer of Intellectual Property Rights and the principle of Exhaustion. Most markets or regional blocks have one treaty or the other which allows Parallel trade and enhances the free movement of goods and services to and from their territories. This has enriched the consumer choices in these markets with variety of products priced competitively across markets. In explaining the potential benefits of parallel imports the European Commission Press Release[39] declares “The Court has ruled (Case C 44/01 delivered on April 8, 2003 paragraph 63 of the judgement) that “in completing the Internal Market as an area without internal frontiers in which free competition is to be ensured, parallel imports play an important role in preventing the compartmentalisation of national markets”.

It is therefore in this guise the European Commission recognises the right of an IP holder to request protection within and across member states until such a time as the product has been manufactured and distributed for the first time, be it directly by the IP holder or indirectly through licensed 3rd parties or distributors. However once an IP holder has marketed a product for the first time in any one Member State, the IP holder no longer has the right to stop or control the marketing of the product in other Member States. This implies the IP holder’s right to market the product is exhausted and thereafter a parallel importer can purchase and market the products across member states without fear of restriction or being in breach of the IP holders rights.

  • De-branding and/ or Co-branding conditions

The notion of de-branding or co-branding suggest that exhaustion may occur in instances where a parallel importer is required to change the packaging of a product an example being where there is a difference in language from the country of origin and that where it is to be marketed. The European Commission have issued guidelines which have become a standard for member states as interpreted and summarised below[40];

  • There should be no adverse alteration to the condition of the original product.
  • Full disclosure on the new package of the name of whoever is undertaking the manufacture or rebranding of the product packaging.
  • That this new package for the product is not in any way resulting in a negative reputation of the trade mark or its
  • The holder of the trademark is duly informed prior to the product being repackaged and circulated in the market.

Notwithstanding the above Intellectual Property Rights will be exhausted upon expiration of its tenure or even with an improvement on the product.

6.0 CONSEQUENCES OF EXHAUSTION OF INTELLECTUAL PROPERTY

  • An IP owner may no longer have any claims over the reselling of goods once it has released the goods into another Member State through the lawful sale or by way of the IP owner’s ’s consent[41].
  • Exhaustion breaks down the barriers that frustrate the free movement of goods within the community market by ensuring that IPR’s are not restrictive and adverse to the concept of single market trade and development[42].
  • Merck v Stepharillustrates that once exhaustion occurs there is no restriction placed over the return into the original market from a Member State where the goods were sold / marketed by the patentee, even if this means that the re-import back into the Member State of origin is at a reduced monetary value[43].

Further, in Societe Terrapin (Overseas) Ltd. V Societe Terranova Industrie CA Kapferer the court was of the view that that IPR’s should not restrict competition in the common market or any way form indiscernible barriers in the common market[44].  Both the above rulings find their roots in the precedent set in Dutsche Grammophon Gesellscaft mbH. V Metro- SB-Grossmarkte GmbH & Co. K.G and Centrafarm BV v Sterling Drug Co. Inc.where the concept of parallel imports was entertained by the courts for the purpose of facilitating the free movement of goods, which is a critical feature of the EU common market[45].

There are thus no intellectual property right restrictions on parallel imports within the single EU market. The EU Courts have been very virtuous in ensuring that these principles are applied consistently and that small parallel importers are not tormented by their richer counterparts who may feel threatened by parallel importation[46].

  • CONCLUSION

The development of FMGs creates a ground for improved economic integration and interaction. However, the issue of intellectual property rights remains critical. However, the European Court continues to play its role in promoting the rights and ensuring that free trade does not include the infringement of the rights. Even so, the doctrine of exhaustion, which to some extent has provided leverage for importers to strive does not grant absolute immunity to importers from the protection of IPRs. Exhaustion allows for resale, rental, lending and other commercial uses in both the domestic and international market, once product was sold under the consent of the intellectual property owner.

8.0 Bibliography

Calboli, Irene, and Edward Lee. Research handbook on intellectual property exhaustion and parallel imports. Cheltenham, UK: Edward Elgar Publishing, 2016.

Carvalho, Nuno Pires de. The TRIPS regime of patent rights. Austin: Wolters Kluwer Law & Business, 2010.

Cook, Trevor M. EU intellectual property law. Richmond: Richmond Law & Tax, 2006.

Czapracka, Katarzyna. Intellectual property and the limits of antitrust : a comparative study of US and EU approaches. Cheltenham, U.K.: Edward Elgar, 2009.

Eechoud, Mireille M M van. Harmonizing European copyright law : the challenges of better lawmaking. Austin: Wolters Kluwer Law & Business, 2013.

Enchelmaier, Stefan, Malcolm Jarvis, Angus Johnston, Sven Norberg, and Peter J Oliver. Oliver on Free Movement of Goods in the European Union : Fifth Edition. London: Hart Publishing, 2010.

Sarnoff, Joshua D. Research handbook on intellectual property and climate change. Cheltenham: Edward Elgar, 2012.

Vaver, David. Intellectual Property Rights: Critical Concepts in Law, Volume 5. New York: Taylor & Francis, 2016.

Other References

Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390

Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmärkte GmbH & Co. KG [1971] E.C.R 00487

Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390

Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390 [2]

Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390 [3]

Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390

[1] Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings [6.11.2012] OJ C 338

[1] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390

[1] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 47–390

[1] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 47–390

[1] Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmärkte GmbH & Co. KG [1971] ECR 00487

[1] Centrafarm BV and Adriaan de Peijper v Sterling Drug Inc [1974] ECR. 1147

[1] Centrafarm v. Winthrop [1974] ECR 1183

[1] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 47–390

[1]Hunshyal and Biradar[2005] “Intellectual property rights (IPRS) in Pharmaceutical Sector” “Health Administrator” 19[1] 48-50.

[1] Paris Convention for Protection of Industrial Property, [20.3.1883]

[1] Berne Convention for the Protection of Literary and Artistic Works [9.9.1886]

[1] Paris Convention [supra note 3 Articles 2 and 3]

[1]

[1] Copyright Designs and Patents Act 1988 Sections 16(1)(b), 18(1), 18(2) and 18(3)a

[1] Copyright Designs and Patents Act 1988 Sections 18(3) References in this Part to the issue to the public of copies of a work do not include—(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation

[1] Sean Jauss, ‘Exhaustion of copyright’ (Lexology.com, 2006) <http://www.lexology.com/library/detail.aspx?g=29f0d605-aae8-4163-966b-3d2acb0ba3a3> accessed 15 February 2017

[1] EU Directive 2001/29/EC and 2009/24/EC

[1] Section D(4)(e)

[1] TRIPS Agreement of 1994; Article 6 Paragraph 4(d)

[1] WCT, of 1996; Article 6 Right of Distribution

[1] WPPT, of 1996. Paragraphs (2) of Articles 8 and 12

[1] Articles 4(bis) and 6(3)

[1] CDIP, ‘INTERFACE BETWEEN EXHAUSTION OF INTELLECTUAL PROPERTY RIGHTS AND COMPETITION LAW’ (WORLD INTELLECTUAL PROPERTY ORGANISATION 2011) <http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_4/cdip_4_4rev_study_inf_2.pdf> accessed 15 February 2017

[1] World Trade Organisation, ‘The General Agreement on Tariffs and Trade’ (WTO.org, 1997) <https://www.wto.org/english/docs_e/legal_e/gatt47_e.pdf> accessed 20 February 2017

[1] COMM, ‘European commission – PRESS RELEASES – press release – commission communication on parallel imports of proprietary medicinal products frequently asked questions’ (19 January 2004) <http://europa.eu/rapid/press-release_MEMO-04-7_en.htm> accessed 15 February 2017

[1] These conditions were clarified by the Court in a series of judgements since the case 102/77 Hoffmann-La Roche (1978) ECR 1139. See in particular, case 1/81 Pfizer v Eurim-Pharm (1981) ECR 2913, joined cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others (1996) ECR I-3457, case C-379/97 Upjohn (1999) ECR I-6927, case C-443/99 Merck, Sharp & Dohme (2002) ECR I-3703 and case C-143/00 Boehringer (2002) ECR I-03759

[1] Eechoud, Mireille M M van. Harmonizing European copyright law : the challenges of better lawmaking. Austin: Wolters Kluwer Law & Business, 2013.

[2] Calboli, Irene, and Edward Lee. Research handbook on intellectual property exhaustion and parallel imports. Cheltenham, UK: Edward Elgar Publishing, 2016.

[3] Vaver, David. Intellectual Property Rights: Critical Concepts in Law, Volume 5. New York: Taylor & Francis, 2016.

[4] Peter Oliver, Malcolm Jarvis Assisted, and Malcolm A. Jarvis, Free movement of goods in the European community: Under articles 28 to 30 of the EC treaty (4th edn, Sweet & Maxwell 2002)

[5] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p47–390[28]

[6] Procureur du Roi v Benoît and Gustave Dassonville [1974] E.C.R 00837

[7] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390[34]

[8] Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 00837,[1]

[9] Centrafarm v. Sterling Drug [1974] ECR. 1147

[10] Carvalho, Nuno Pires de. The TRIPS regime of patent rights. Austin: Wolters Kluwer Law & Business, 2010.

[11] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390

[12] Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmärkte GmbH & Co. KG [1971] E.C.R 00487

[13] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390

[14] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390 [2]

[15] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390 [3]

[16] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390

[17] Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings [6.11.2012] OJ C 338

[18] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 p 47–390

[19] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 47–390

[20] Enchelmaier, Stefan, Malcolm Jarvis, Angus Johnston, Sven Norberg, and Peter J Oliver. Oliver on Free Movement of Goods in the European Union : Fifth Edition. London: Hart Publishing, 2010.

[21] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 47–390

[22] Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmärkte GmbH & Co. KG [1971] ECR 00487

[23] Centrafarm BV and Adriaan de Peijper v Sterling Drug Inc [1974] ECR. 1147

[24] Centrafarm v. Winthrop [1974] ECR 1183

[25] Consolidated version of the Treaty on the Functioning of the European Union [26.10.2012] OJ C 326 47–390

[26] Enchelmaier, Stefan, Malcolm Jarvis, Angus Johnston, Sven Norberg, and Peter J Oliver. Oliver on Free Movement of Goods in the European Union : Fifth Edition. London: Hart Publishing, 2010.

[27]Hunshyal and Biradar[2005] “Intellectual property rights (IPRS) in Pharmaceutical Sector” “Health Administrator” 19[1] 48-50.

[28] Paris Convention for Protection of Industrial Property, [20.3.1883]

[29] Berne Convention for the Protection of Literary and Artistic Works [9.9.1886]

[30] Paris Convention [supra note 3 Articles 2 and 3]

[31] Vaver, David. Intellectual Property Rights: Critical Concepts in Law, Volume 5. New York: Taylor & Francis, 2016.

[32] Enchelmaier, Stefan, Malcolm Jarvis, Angus Johnston, Sven Norberg, and Peter J Oliver. Oliver on Free Movement of Goods in the European Union : Fifth Edition. London: Hart Publishing, 2010.

[34] Copyright Designs and Patents Act 1988 Sections 16(1)(b), 18(1), 18(2) and 18(3)a

[35] Copyright Designs and Patents Act 1988 Sections 18(3) References in this Part to the issue to the public of copies of a work do not include—(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation

[36] Sean Jauss, ‘Exhaustion of copyright’ (Lexology.com, 2006) <http://www.lexology.com/library/detail.aspx?g=29f0d605-aae8-4163-966b-3d2acb0ba3a3> accessed 15 February 2017

[37] CDIP, ‘INTERFACE BETWEEN EXHAUSTION OF INTELLECTUAL PROPERTY RIGHTS AND COMPETITION LAW’ (WORLD INTELLECTUAL PROPERTY ORGANISATION 2011) <http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_4/cdip_4_4rev_study_inf_2.pdf> accessed 15 February 2017

[38] World Trade Organisation, ‘The General Agreement on Tariffs and Trade’ (WTO.org, 1997) <https://www.wto.org/english/docs_e/legal_e/gatt47_e.pdf> accessed 20 February 2017

[39] COMM, ‘European commission – PRESS RELEASES – press release – commission communication on parallel imports of proprietary medicinal products frequently asked questions’ (19 January 2004) <http://europa.eu/rapid/press-release_MEMO-04-7_en.htm> accessed 15 February 2017

[40] These conditions were clarified by the Court in a series of judgements since the case 102/77 Hoffmann-La Roche (1978) ECR 1139. See in particular, case 1/81 Pfizer v Eurim-Pharm (1981) ECR 2913, joined cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others (1996) ECR I-3457, case C-379/97 Upjohn (1999) ECR I-6927, case C-443/99 Merck, Sharp & Dohme (2002) ECR I-3703 and case C-143/00 Boehringer (2002) ECR I-03759

[41] Carvalho, Nuno Pires de. The TRIPS regime of patent rights. Austin: Wolters Kluwer Law & Business, 2010.

[42] Cook, Trevor M. EU intellectual property law. Richmond: Richmond Law & Tax, 2006.

[43] Ibid.

[44] Czapracka, Katarzyna. Intellectual property and the limits of antitrust : a comparative study of US and EU approaches. Cheltenham, U.K.: Edward Elgar, 2009.

[45] Eechoud, Mireille M M van. Harmonizing European copyright law : the challenges of better lawmaking. Austin: Wolters Kluwer Law & Business, 2013.

[46] Vaver, David. Intellectual Property Rights: Critical Concepts in Law, Volume 5. New York: Taylor & Francis, 2016.