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In Oracle America Inc (formerly Sun Microsystems Inc) v M-Tech Data Ltd the Court of Appeal held that Arts 5 and 7 of the Trademark Directive, which govern the rights conferred and the exhaustion of the rights conferred by a trademark, do not exclude defences based on Arts 34 and 36 TFEU, in cases in which it is shown that the proprietor of a trademark has adopted practices which distort trade within the single market. Even though this ruling was recently reversed on appeal by the Supreme Court, its reasoning is remarkable in as much as it is understood as confirming a claim of ‘abuse of rights' under secondary internal market (harmonisation) legislation, which would a fortiori constitute a violation of the primary Treaty provisions on the free movement of goods. However, it is advanced (in a complementary fashion to the reasoning of the Supreme Court) that it is not legitimate to have recourse to the concept of ‘abuse of rights' in regulating the exercise of EU-based IP rights, given the availability of the alternative tool of the prohibition of an ‘abuse of a dominant position' (Art 102 TFEU).
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