Poder da marca: interações entre direito antitruste e direito industrial

O presente trabalho busca analisar os diferentes tratamentos dispensados à marca no âmbito do controle preventivo e no controle repressivo de condutas. A análise da função social das marcas demonstrou que esta é uma propriedade que se realiza na concorrência e pela concorrência. Nesse sentido, não há dúvidas de que está sujeita aos princípios do Direito Concorrencial. Todavia, a maneira como esses princípios balizam a marca no controle de atos de concentração, de um lado, e no controle repressivo de condutas, de outro, difere. No âmbito do controle de atos de concentração, a atuação da autoridade concorrencial é orientada por uma variante do princípio da precaução, o que a autoriza a tomar decisões e impor restrições aos direitos marcários mesmo em um contexto de incerteza. No âmbito do controle repressivo de condutas, todavia, a intervenção do CADE está sujeita aos princípios do Processo Administrativo Sancionador. Neste contexto, as condutas que envolvem o uso de direitos de propriedade intelectual, incluindo as marcas, devem ser analisadas à luz do princípio da estrita legalidade. Um critério jurídico objetivo é necessário para distinguir o lícito do ilícito, sobretudo em um cenário no qual estão em jogo duas políticas públicas distintas: a de proteção à concorrência e a de proteção à direitos de propriedade industrial. Sendo essas duas políticas instrumentais e parciais, voltadas a um fim maior de política econômica, devem harmonizar-se, e não sobrepor-se uma a outra. Ademais, o escopo de atuação da autoridade concorrencial em processos que investiguem o uso abusivo de direitos marcários e atos de concorrência desleal deve ser esclarecido. O direito concorrencial, enquanto ramo autônomo do direito, com princípios e métodos interpretativos próprios, pode analisar institutos e figuras de outros ramos que com ele guardem relação sem ter de ficar adstrito ao posicionamento de outras instâncias.

The recognition and protection of well-known trade marks in Indonesia

Legal context The recognition and protection of well-known marks in Indonesia has improved over the last few years for a variety of reasons.

Key points First, the Asian Crisis resulted in the creation of a Commercial Court, which is a clear improvement over the previously responsible District Courts. Secondly, the increasingly frequent publication of court decisions has improved transparency and consistency of those decisions. Well-known marks are now clearly protected against use for similar goods/services. Protection is extended to dissimilar goods/services by applying Article 16(3) TRIPS directly or by arguing that registration occurred in bad faith. Nevertheless, decisions thus far concern almost exclusively revocation and invalidity of registrations. Civil remedies such as damages and interim injunctions are hardly used, because the outdated civil procedural law has not familiarised judges with such legal instruments. Clearing the register of infringing registrations is another matter of concern. Cancellation for non-use for three consecutive years can be difficult, because the plaintiff is required to provide evidence of the last use in the production of the goods/services rather than in the course of trade more generally.

Practical significance While it has become much easier to protect well-known marks in Indonesia, much work remains to be done regarding the procedural framework of civil infringement proceedings and regarding the clearing of the register.

Economics of Policy Errors and Learning in the European Union. Bruges European Economic Policy (BEEP) Briefing 31/2013

Policy errors occur regularly in EU Member States. Learning from these errors can be beneficial. This paper explains how the European Union can facilitate this learning. At present, much attention is given to “best practices”. But learning from mistakes is also valuable. The paper develops the concept of “avoidable error” and examines evidence from infringement proceedings and special reports of the European Court of Auditors which indicate that Member States do indeed commit avoidable errors. The paper considers how Member States may take measures not to repeat avoidable or predictable errors and makes appropriate proposals.

Tackling barriers to trade in the Single Market. ACES Cases No. 2014.2

This paper focuses on the challenges operating in the single market due to continued persistence of regulatory barriers to trade, despite being considered one of the most integrated and successful areas of market integration. We use a unique data set on infringements to the free movement of goods to assess the types of barriers that firms encounter, their impact and variation across states and sectors, and their resolution method - through Court decisions or the pre-litigation, administrative means available within the infringement proceedings mechanism to restore compliance. We also resort to the Solvit dataset provided to the authors by the Commission to analyse some features and the effectiveness of this informal mechanism in dealing with discriminatory domestic trade and regulatory practices. We examine four key questions: What are the most problematic policy areas in terms of barriers to trade that undermine the single market? What different dispute resolution mechanisms are utilized to address trade barriers and thus improve the functioning of the single market? Under what conditions are different enforcement mechanisms and strategies more likely to be used to resolve barriers for businesses operating in the single market? How important and effective are the more informal strategies in improving market access? In doing so, our goal is to link the research on trade barriers to that of implementation and compliance to assess the diverse strategies undertaken to reduce regulatory barriers to trade.

Le contrôle des pratiques anticoncurrentielles au sein des marchés de l'Union Européenne, des États-Unis et du Canada : perspectives d'un droit antitrust international

"Mémoire présenté à la Faculté des études supérieures en vue de l'obtention du grade de Maîtrise en droit des affaires"

The Application of European Competition Law in Arbitration Proceedings

This work provides several policy proposals capable to strengthen the private enforcement of EU competition law in arbitration. It focuses on the procedural law aspects that are permeated by legal uncertainty and that have not yet fallen under the scrutiny of the law and economics debate. The policy proposals described herein are based on the functional approach to law and economics and aim to promote a more qualified decision making process by: adjudicators, private parties and lawmakers. The resulting framework of procedural rules would be a cost-effective policy tool that could sustain the European Commission’s effort to guarantee a workable level of competition in the EU internal market. This project aims to answer the following broad research question: which procedural rules can improve the efficiency of antitrust arbitration by decreasing litigation costs for private parties on the one hand, and by increasing private parties’ compliance with competition law on the other hand?Throughout this research project, such broad question has been developed into research sub-questions revolving around several key legal issues. The chosen sub-research questions result from a vacuum in the European enforcement system that leaves several key legal issues in antitrust arbitration unresolved. The legal framework proposed in this research project could prevent such a blurry scenario from impairing the EU private enforcement of competition law in arbitration. Therefore, our attention was triggered by those legal issues whose proposed solutions lead to relevant uncertainties and that are most suitable for a law and economics analysis.

Competition law proceedings before the European Commission and the right to a fair trial: no need for reform? Research Papers in Law, 5/2008

From the Introduction. This paper will thus show that, given the rapid "criminalisation" of competition law proceedings, sanctions should in principle be imposed at first instance I. Sanctions imposed by the Commission in competition proceedings are "criminal charges" within the meaning of Article 6 ECHR by an independent and impartial tribunal fulfilling all the conditions of Article 6 ECHR (part I). Or at the very least, these sanctions should be subject to full jurisdictional review by an independent and impartial tribunal in order to comply with Article 6 ECHR and to cure the defects of the administrative procedure (part II). It is doubtful however whether such a full jurisdictional review, as it is understood by the ECtHR, is available at Community-level in antitrust cases.

Introduction to the Proceedings of the 1st EDOC 2009 Workshop on Service-Oriented Business Networks and Ecosystems (SOBNE '09)

The first Workshop on Service-Oriented Business Networks and Ecosystems (SOBNE ’09) is held in conjunction with the 13th IEEE International EDOC Conference on 2 September 2009 in Auckland, New Zealand. The SOBNE ’09 program includes 9 peer-reviewed papers (7 full and 2 short papers) and an open discussion session. This introduction to the Proceedings of SOBNE ’09 starts with a brief background of the motivation for the workshop. Next, it contains a short description of the peer-reviewed papers, and finally, after some concluding statements and the announcement of the winners of the Best Reviewer Award and the Most Promising Research Award, it lists the members of the SOBNE ’09 Program Committee and external reviewers of the workshop submissions.

Industrial Relations: Proceedings from the 1999 Australasian Drama Studies Association Conference

These papers were presented at “Industrial Relations”, the Australasian Drama Studies Association conference hosted by Theatre & Teaching Studies in the Academy of the Arts, Queensland University of Technology, from the 5th to the 9th of July, 1999. Conference delegates included scholars and artists from across the tertiary education and professional theatre sectors, including, of course, many individuals who work across and between both those worlds. More than a hundred delegates from Australia, New Zealand, England, Belgium and Canada attended the week’s events, which included: • Over sixty conference papers covering a variety of topics from project reports to academy/industry partnerships, theatre history, audience reception studies, health & safety, cultural policy, performance theory, theatre technology and more; • Performances ranging from drama to dance, music and cabaret; • Workshops, panel discussions, forums and interviews; • Keynote addresses from Wesley Enoch, Josette Feral and Keith Johnstone; and • A special “Links with Industry” day, which included the launch of ADSA’s “Links with Industry” brochure, an interview between Mark Radvan and David Williamson, and a panel session featuring Jules Holledge, Zane Trow, Katharine Brisbane, John Kotzas, Gay McAuley and David Watt.

Proceedings of the 21st Australian Software Engineering Conference (ASWEC 2010) : 6-9 April 2010, Auckland, New Zealand.

ASWEC is a joint conference of Engineers Australia and the Australian Computer Society reporting through the Engineers Australia/ACS Joint Board on Software Engineering.