Trademark Transactions in EU Law – Refining the Approach to Selective Distribution Networks and National Unfair Competition Law

Given the rudimentary nature of the current set of EU rules, the regulation of trademark transactions in the EU depends on a harmonious interplay of harmonized EU law on the one hand, and individual national laws on the other. This configuration of the system places a particular responsibility on the Court of Justice of the European Union. Interpreting harmonized EU rules, the Court ought to consider the impact of its decision on the proper functioning of national law. An overambitious approach seeking to maximize the harmonizing effect of the rudimentary set of EU norms will almost inevitably lead to unsatisfactory results. After a short overview of EU objects of property rules and present amendment proposals, two decisions of the CJEU will be brought into focus to illustrate this point. The decision in Copad/Dior gives rise to concerns about harmonized rules in the Trade Mark Directive becoming a straitjacket offering insufficient breathing space for the reconciliation of licensor, licensee and third party interests, while the case Martin Y Paz/Depuydt sheds light on the potential corrosive effect on national unfair competition law. The analysis shows the structural deficiencies of the current EU system and the need for additional fine-tuning based on both EU and national norms