In the recent Case AT. 40433 – Film merchandise involving the legality of licensing agreements covering trade marks and other IP rights under Art. 101 TFEU, the European Commission stated the following:
‘In Consten and Grundig, the Court established a distinction between the existence and the exercise of intellectual property rights with regard to an agreement for the assignment of a trade mark aimed at partitioning the internal market. The Court held that rights under national trade mark law, such as the right to assign the trade mark, cannot be exercised so as “to frustrate the Community’s law on cartels”’.
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