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Abstract

Competition law has in the past tended to see suspiciously the protection of trademark as directly opposed to the goals of competition law. As this paper shows this view has been abandoned and substituted by a more synthetic approach in which the goals of trademark law and competition law are not incompatible but may be pursued conjunctly. The paper discusses the importance and practical feasibility of striking a balance between competition law and trademark rights, with a specific attention to the specificities of trademarks. The paper will focus on the issue of the compatibility between the goals of trademark law and competition, and by analyzing the competition case law it provides a careful insight of how the balance is struck in the decisional practice. The paper shows that the “internalisation” of competition law considerations when dealing with trademark issues and vice versa certainly affects the reasoning of the courts. The choice of considering an issue from the point of view of either trademark law or competition law empowers the courts to address the same issue in a completely different manner and come to a different conclusion. It remains to be assessed whether, in future cases, the characterization of a case as an IP or a competition law case by the courts will also have a bearing, given the profound consequences for the structure of the analysis that is performed by the adjudicator, and, in turn, on the final outcome of the case of such a choice.

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