Trade Mark Infringement or Unfair Commercial Conduct? The Complications of Case C-129/17 “Mitsubishi”

Abstract

The protection of IP rights has always caused friction between the interests of rightsholders and consumers. To aid in alleviating this tension, the various branches of IP law have developed their own doctrines of exhaustion. Regarding European Union (“EU”) trade mark law, the Court of Justice of the European Union (“CJEU”) authoritatively considers the EU Trade Mark Directive (“EUTMD”) and EU Trade Mark Regulation (“EUTMR”) as adopting a model of regional exhaustion. However, the author considers that following Case C-129/17 “Mitsubishi”, the CJEU has illegitimately extended the scope of EU trade mark law to cover situations that, when properly considered, ought to be dealt with under the national laws of EU Member States as unfair competition issues. The following exposition shall substantiate this claim.