IPR, Competition Law and Dynamic Development - IPR's Constitutionalisation and Expansion: Can the 'Common Goals' Description Cope?

Abstract

This chapter discusses two issues related to the IPR/competition law interface in EU law. The first issue is the “constitutionalising” of IPR, i.e. the tendency to use fundamental rights norms as the basis for “rebalancing” IPR. This development is to some extent parallel to the development of competition law but it may give rise to difficulties in balancing economic perspective against the perspective of fundamental rights. The next topic is more specific and reflates to the issue of trade mark law. It is argued that the constitutionalization and increased competition law based scrutiny of IPR both may help IPR to stay on course and to serve general welfare goals rather than the interests of specific groups of users. At the same time the increased focus on fundamental rights and non-economic values run counter to competition law's focus on efficiency. For the trade mark law interfaces it is argued that courts should in some very specific instances not reject compulsory licensing of trade mark law based on a dogmatic rejection of this option. Instead they should engage in a concrete analysis.