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Anti-trust law protects the competition. This is an extremely serious matter for the legislative authorities. A violation of anti-trust law may lead to monetary fines and damages, but at a minimum renders contracts invalid. Anti-trust law may overrule contract law. As an example, a licence agreement, which stipulates the payment of licence fees without the ability to terminate the contract, even if the underlying property right has lapsed already, can be terminated without notice by virtue of anti-trust law.
Property rights can lead to market-dominating positions, which, in itself, is not illegal. Market-dominating companies are, however, subject to a particular monitoring of unfair practices, and it may be unfair to refuse a licence to a competitor. We assist companies from both perspectives: from the perspective of the market-dominating company and that of the company that feels discriminated against.
The IP holder may enter into licence agreements with another company to allow this company to use the intellectual property right. Anti-trust law sets some limits for these types of licence agreements. It is, for example, not allowable to dictate the prices at which the products produced on the basis of the licence are sold. This is why licence agreements should be reviewed in consideration of anti-trust law before they are signed. Research and development agreements may violate anti-trust law as well, for example when the contracting parties are later not allowed to use the inventions that the agreement is based on.
The close cooperation of our intellectual property attorneys and anti-trust law attorneys allows us to provide comprehensive assistance to licensors and licensees in the development of agreements that comply with anti-trust law. This is particularly important in technology industries such as IT, software, databases, mechanical engineering, electrical engineering, chemistry, life sciences, and pharmaceutics.
Our attorneys regularly publish articles and author well-known commentaries on European and German anti-trust law. They have not only commented on the derogations of Art. 101 par. 3 TFEU and all the provisions of the German prohibition of cartels (Sec. 1 to 3 of the German Act against Restraint of Competition – GWB), but specifically on the interface between industrial property rights, copyright, and anti-trust law. One of the few commentaries on news agency distribution in Germany (Sec. 30 GWB) was authored by our attorneys.