Research project

Investigator:
Irene Calboli

Abstract:

This project will explore the relationship between national rules on the exhaustion of intellectual property rights—primarily patents, trademarks, and copyrights—and the free movement of goods in free trade areas or block of countries that aim at creating common markets like the European Union (EU). More specifically, this project will prove that the enforcement of national intellectual property rights can represent an invisible barrier to intra-free trade areas or common markets’ trade in the absence of consistent national rules permitting parallel imports within these areas and markets. In this respect, this project will first refer to the experience in the EU, which has long prioritized the creation of the internal EU market and adopted a consistent rule of EU-wide exhaustion of intellectual property rights for all Member States. This project will then compare the EU experience with two other regional blocks: the North American Free Trade Area (NAFTA), which leaves the members of NAFTA free to adopt their preferred policies with respect to exhaustion, but also never intended to create a common market; and the Association of South East Asian Nations (ASEAN), which also does not regulate the national policies adopted by the members of ASEAN but (differently than NAFTA and similarly to the EU) aims at creating a common market for goods. Ultimately, this project will support that countries that effectively desire to create a free trade area or common market need to adopt national exhaustion policies that would allow for the free movement of goods—namely regional exhaustion as in the case of the EU, or international exhaustion, with respect to all types of intellectual property rights. In this context, this project will also consider the increasingly relevant issue of overlapping intellectual property rights, that is, the application of multiple types of intellectual property protection to the same product (or separate components of the same product), and the impact that different national rules on exhaustion with respect to different rights may also have on the free movement of goods within the members of free trade areas. Notably, this project will highlight that, in the case of diverging national policies (for example providing national exhaustion in patent law, but international exhaustion in trademark law), intellectual property owners may leverage one type of protection versus another in order to control parallel imports within free trade areas or common markets, thus again (mis)using intellectual property as an invisible barrier to otherwise legitimate trade.