Joint Purchasing-framework for Competition Law Analysis & Mechanisms to Address Overly-broad Trademark Usage (LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition)

This volume of the LIDC contributions covers a competition law assessment of buying alliances as well as the topic of overbroad registrations and trademark clogging. It contains a series of national reports prepared to assist the International Rapporteurs in reporting to the LIDC Congress in Gothenburg in September 2023.

The first part focuses on how competition law assesses coordinated conduct by buyers, such as joint purchasing/buying alliances. Different jurisdictions have taken a range of approaches to this issue and the reports summarise the current situation, explore the boundary between legitimate and infringing conduct and consider the extent to which further guidance from competition authorities and/or courts is required in order to enable companies to distinguish clearly between legitimate and efficient conduct and infringements of competition law. The conduct of buyers in their interactions with suppliers and markets when purchasing goods and services has recently come under increased scrutiny from a competition law perspective and guidance has been issued by the European Commission and by some national competition authorities. At the same time, there has been an increase in enforcement activity in the area of buyers’ cartels and purchase price fixing (such as the Ethylene and Car Battery Recycling cases) and this is explored in the reports.

The second part focuses on intellectual property and, in particular, what mechanisms exist to avoid over-broad trademarks and address concerns that the trademark registers are clogged. Academics, practitioners and some regulators have raised concerns regarding potential for uncertainty regarding the scope of protection and increased costs for third parties wishing to register new trademarks. The reports focus on the bad faith standard in the long running Sky v SkyKick case and the effectiveness of mechanisms to tackle this issue by preventing or removing overbroad trademarks and ensuring the integrity of the registration system.

Bruce Kilpatrick is a partner at Linklaters LLP, based in London. He advises a range of clients on competition law, utility regulation, merger control, and EU state aid matters. He has particular expertise in the energy, transport, retail, and financial services sectors.

Pierre Kobel is a partner at Athena in Geneva. He practiced in all fields of law in different law firms in Geneva, Lausanne, and in the USA, as well as with the Federal administration in Bern. He is frequently invited as a guest lecturer and is a recognized practitioner in the field of antitrust, intellectual property, and dispute resolution.