Wolters Kluwer Trademarks and Brands in Merger Control: An Analysis of the European and Swiss Legal Orders (International Competition Law Series)

The role of intellectual property rights in merger control procedures has not received the attention it warrants. Most research has focused on the assessment of intellectual property rights in anticompetitive conducts rather than on how a firm can monopolise a market by accumulating such assets. This is despite the fact that access to such assets, whether used or unused, is often a key factor, if not the only one, motivating mergers. This book, the first to address trademarks and brands from the perspective of merger control procedure, studies the legal issues of the topic. It provides a comprehensive response to the question of how European and Swiss competition authorities should consider trademarks and brands when assessing a merger. The authors thorough and critical approach addresses topics such as: the in-depth assessment of the legal and economic foundations of both trademarks and brands, and merger control; why trademarks and brands may be relevant to the assessment of mergers, including the distinction between trademarks and brands, the origin of the brands strength according to marketing sciences, and how and why brands may provide market power to their holder; the conditions under which the assignment or licence of a trademark may qualify as a concentration under the definition of the European Union Merger Regulation or of the Swiss Cartel Act; the role played by trademarks and brands in the substantive assessment of a merger, including the definition of the relevant markets, different types of mergers, and the invocation of the failing firm defence; the provision of detailed guidelines describing the possible influence of trademarks and brands on the outcome of the merger assessment; and the importance of trademarks and brands in the design and assessment of remedies. At every stage of the study, special attention is given to the decisions of both the European Commission and the Swiss Competition Commission. As the first detailed analysis of the role of trademarks and brands in the assessment of mergers, this book constitutes a deep and illuminating answer to the uncertainties regarding the outcomes of the assessment of mergers that derive from the more economic approach prevailing in European Union Law. It cannot fail but capture the interest of practitioners, businesspeople and academics whose work involves competition and intellectual property.