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Intellectual Property and Antitrust : Greece


Reproduced with permission from Law Business Research. This article was first
published in Getting the Deal Through - Intellectual Property & Antitrust,
(published in 2011; contributing editor: Susan Hutton). For further information
please visit www.GettingTheDealThrough.com.



INTELLECTUAL PROPERTY

1. Intellectual property law

Under what legislation are intellectual property rights granted? (Please describe the basic contours of these rights, as well as any non-statutory IP rights.) Are there restrictions on how IP rights may be exercised, licensed or transferred? Do the rights exceed the minimum required by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)?

Trademarks

Legislation

Trademarks achieve protection by registration pursuant to Law No. 2239/1994 (“the Trademark Act”). A trademark will be protected for 10 years, beginning the day after the application for its registration was filed, but it can be renewed indefinitely. Registration will grant the exclusive right to use the trademark in relation to the goods or services for which it is registered.

In Greece, law no. 146/1914 (the “Unfair Competition Act”) provides similar protection for both registered and unregistered marks if goodwill, likelihood of confusion and damage can be demonstrated.

Furthermore, Law 2783/2000 and Ministerial Decision K4-307/2001 provide the framework for international protection by ratifying the Madrid Protocol.

Depending on the commercial considerations of the owner of the mark, (such as the nature of the mark and countries of trading interest) choice exists as to whether it should register a Greek, EU or International trademark.

Restrictions

Subject to the general law, no restrictions apply as to the exercise of a trademark.

Assignment of trademarks should be made in writing and should be registered with the Trademark Bureau.

Furthermore, it should be noted that under s. 9 of Law no. 2251/1994 (the “Consumer Protection Act”) using a competitor’s trademark for the purposes of comparative advertising does not constitute trademark infringement so long as the requirements of the above section are met.

Copyright

Legislation

Copyright arises automatically under Law No. 2121/1933 (the “Copyright Act”). The duration of copyright in Greece contrary to what exists in other countries does not vary depending on the nature of the work, but it is fixed for the life of the author plus 70 years after his death.

The only variation to the above is that in cases of co-authorship the 70 years run from the 1st of January of the year of death of the surviving author. Anonymous works are protected for 70 years running from the 1st of January of the following year in which the work was made accessible to the public.

Databases and software under the Copyright Act also achieve protection.

Restrictions

Prima facie, copyright can be freely transferred. However although moral rights can be inherited, they cannot be transferred inter-vivos.

Both licensing and assignment have to be in writing for them to be valid. Licensing of copyright can be exclusive or non exclusive, but in the absence of an express provision, a licence is regarded to be non exclusive.

Another restriction as regards licensing of copyright is that the licence cannot refer to future works or to methods of exploitation which were unknown at the time the contract was drafted.

Design Rights

Legislation

Design rights are governed by Law No. 2417/1996. (the “Registered Design Rights Act”). The design right is protected by registration for an initial period of 5 years, which can be renewed for up to 25 years. For a design to achieve registration it must be new and have individual character. This applies to both two- and three- dimensional designs.

Although there is nothing equivalent to an unregistered design right in Greece, owners of designs which have not been registered can achieve protection under the Unfair Competition Act.

Restrictions

For a design right to be transferred or licensed, the contract has to be in writing and it has to be filed with the Registrar of Design Rights. Furthermore it must be published at the Special Bulletin of Industrial Property.

In the event of joint ownership of a registered design right, each joint owner can separately transfer its share. However for a licence to be granted, all joint owners must consent.

Certainly an exclusive licence cannot be transferred unless it is contractually provided to the contrary.

Patents

Legislation

Patents achieve protection by registration pursuant to Law No. 1733/1987 (the “Patent Act”). The requirements for a patent to be protected are that the invention must be new, original and capable of industrial application. Once granted, a patent will be protected for 20 years. Note that in Greece the concept of “enabling disclosure”, is more elastic than in other member states.

An inventor may apply for EU registration but this would effectively create a number of national patents.

Restrictions

As regards the exercise of the right, the patent owner cannot prevent the invention from being used for non commercial and experimental purposes.

Assignments and licences of patents must be in writing and registered at the Registrar of Patents. In addition to that they must be published at the Special Bulletin of Industrial Property.

It should also be noted that in Greece even the right to register the patent can be transferred.

In cases of joint ownership what was explained above in relation to the registered design right apply.

Furthermore the Greek Patent Act provides for a compulsory licence if:

- Three years have elapsed since the patent was granted or four years from the filing date.

- The patented invention has not been commercially exploited in Greece, or if it was its production fails to cover its demand in the Greek market.

- The third person can exploit commercially the patented invention.

- The third person has notified the patent owner of his intention to apply for a compulsory licence one month before the commencement of the proceedings.

Trade Secrets and confidential information

Secret know-how and other unfair trade practices are protected under the Unfair Competition Act. Furthermore the General Law of Obligations applies as regards confidential information, such as customer lists, trade secrets etc.

TRIPS

Greece is bound by the TRIPs Agreement. Greek IP legislation meets and in certain instances exceeds the minimum requirements of the Agreement.

2. Responsible authorities

Which authorities are responsible for administering IP legislation? (Please describe their roles briefly.)

The authorities which are responsible for the administration of IP legislation in Greece depend on the IP right in question:

Trademarks:

General Secretariat of Commerce which is part of the Greek ministry of Development

Industrial Designs and Patents:

Industrial Property Organization

Copyright:

Directorate for cultural relations (part of the Greek Ministry of culture)

The Copyright organisation

3. Proceedings to enforce IP rights

What types of legal or administrative proceedings are available for enforcing IP rights?

Depending on the type of IP right which is being infringed, there are a number of civil and criminal proceedings available under Greek legislation.

Civil proceedings:

Apart from suing the alleged infringer, the claimant has a number of interim measures (i.e. injunctions, interim orders) which he can utilise as part of his dispute resolution strategy.

Criminal proceedings:

For almost all types of IP rights, criminal proceedings may be initiated. This serves as an intimidation strategy to achieve compliance, as prosecution for IP related offences is not ex officio but can only be initiated after the filing of a complaint by the aggrieved party.

Any criminal judgements will be published in two daily newspapers of Athens, with any commercial implications this may have for the alleged infringer.

4. Remedies

What remedies are available to a party whose IP rights have been infringed?

Civil remedies for infringement of IP rights in Greece include the following:

- Injunctions,

- damages (i.e. compensating for actual or potential losses such as loss of profits),

- an account of profits,

- delivery up,

- destruction orders,

- seizure of infringing items,

- orders to stop the infringing act.

Criminal sanctions (i.e. fines and imprisonment) are also available.

5. IP legislation and competition

Does IP legislation make any specific mention of competition or contain provisions on the anti-competitive or similar abuse of IP rights? (If so, please describe those provisions that relate to competition.)

Although specific mention of Competition is not made in IP legislation, there are certain abuses of IP rights (presumably anti-competitive) which are dealt with in the respective laws.

As an illustration of unfair practices to exploit monopoly rights, consider the situation for the grant of a mandatory licence as described in the relevant section of question 1. Another example is s. 17 of the Trademark Act which provides for the trademark to be deleted (wholly or partially) if it has not been used for a duration of five years from the date of its registration. For the purposes of this section, the non-use must be material.

6. Remedies for deceptive practices

With respect to trademarks, do competition or consumer protection laws provide remedies for deceptive practices in addition to traditional ‘passing off’ or trademark infringement cases?

The Consumer Protection Act (law no 2251/1994), which implements Directive 2005/29/EC (on unfair commercial practices) prohibits practices which may lead to the confusion of the consumer. It prohibits inter alia misleading comparative advertising where third parties’ trademarks are used.

The Unfair Competition Act offers remedies for deceptive practices under the basic prohibition of s.1 which prohibits all acts or omissions which are contrary to bonnes moeurs.

7. Technological protection measures and digital rights management

With respect to copyright protection, is WIPO protection of technological protection measures (TPMs) and digital rights management (DRM) enforced in your jurisdiction? Does legislation or case law limit the ability of manufacturers to incorporate TPM or DRM protection limiting the platforms on which content can be played? Could TPM or DRM protection be challenged under the competition laws?

Yes. The Copyright Act has been amended by law no. 3052/2002 which implements directive 2001/29/EC, thereby bringing it in line with the WIPO standards.

Acts or omissions which would amount to a violation of TPMs and DRMs carry criminal sanctions of imprisonment of at least one years, and a fine between €2,900 and €15,000. Furthermore the Civil sanctions as explained in question 4 apply.

Section 66A (5) of the Greek Copyright Law limits the ability of manufactures to incorporate TPM protection which would in effect prevent users from carrying out acts permitted by national law. In such case the user may appoint one or more mediators which can be chosen by the Board of Mediators maintained by the IPO. If the mediation fails the dispute can be solved by the Court of Appeal of Athens. The above section does not apply in relation to works which are made available to the public on contractually agreed terms in such a way that the public may have access to the work from any place and at any time.

Apart from the above, Greek case law or legislation expressly limiting a manufactures ability to incorporate such protection limiting the platforms on which content can be played, does not exist.

Competition Law Principles still apply when TPMs and DRMs are used in an anti-competitive manner.

8. Industry standards

What consideration has been given in legislation or case law to the impact of the adoption of proprietary technologies in industry standards? (For example, are there any conditions imposed on a patentee of such technology to ensure that it is available to anyone who wishes to use the standard? Has there been any case law dealing with the issue of ‘patent hold-up’ or ‘patent ambush’?)

There has been no consideration in legislation or case law as to the impact of the adoption of proprietary technology in industry standards.

COMPETITION

9. Competition legislation

What legislation sets out competition law? (Please describe this legislation very briefly.)

In Greece, Competition law is divided between unfair competition and antitrust which are governed by law no. 146/1914 (the “Unfair Competition Act”) and Law no. 703/1977 (the “Antitrust Act”) respectively. Furthermore, competition law provisions are scattered around the legislation (such as the Consumer Protection Act).

s. 1 of the Greek Antitrust Act prohibits agreements between undertakings that restrict competition, subject to limited exceptions. s. 2 of the Antitrust Act prevents undertakings of a dominant position from abusing that position. s. 1 mirrors art.81 of the EC Treaty, whereas s.2 mirrors art.82 EC.

s. 4 of the Greek Antitrust Act sets out rules on merger control.

10. IP rights in competition legislation

Does the competition legislation make specific mention of IP rights? (If so, please describe those provisions that relate to IP rights.)

The Greek Antitrust law does not contain any IP related provisions. On the other hand the Unfair Competition Law and other statutes which contain antitrust provisions do include sections relating to IP rights.

Furthermore, the EU block exemptions have a direct effect and therefore apply directly in Greece (i.e. Technology Transfer Block Exemption and the R&D Block Exemption). Hence if an agreement is in line with any of these exemptions it will be exempt from art.1 of the Greek Competition Law.

11. Review and investigation of competitive effect

Which authorities may review or investigate the competitive effect of conduct related to IP rights (eg, licensing or transfer of IP rights)? (If multiple authorities have jurisdiction, please describe how they interact.)

The competitive effect of conduct related to IP rights falls under the competence of the HCC and the European Commission when the matter in question has a national and European dimension respectively.

In theory the Trademark Bureau for trademarks and the IPO for patents and design rights can refer a matter to the HCC, if they deem that a contract or a licence contains anti-competitive clauses.

12. Competition-related remedies for private parties

Do private parties have competition-related remedies if they suffer harm from the exercise, licensing or transfer of IP rights?

A private party has the following options:

- Make a complaint to the HCC.

By filing a complaint with the HCC the aggrieved party will not be entitled to damages although it may nevertheless benefit from the sanctions imposed by the HCC (these include fines and orders to terminate the infringing behaviour).

- Bring an action for civil damages and or other civil remedies.

A private party can sue in tort or apply for an injunction.

13. Competition guidelines

Has the competition authority issued guidelines or other statements regarding the overlap of competition law and IP? (If so, please provide a brief description of these guidelines or statements.)

No. Nonetheless, EU Legislation applies directly in Greece and any Guidelines issued by the European Commission (i.e. Technology Transfer Guidelines, Horizontal Corporation Guidelines, Vertical Restraints Guidelines) will be considered by the HCC.

14. Exemptions from competition law

Are there aspects or uses of IP rights that are specifically exempt from the application of competition law (either by statute or pursuant to case law)? (For example, is the owner’s unilateral exclusion of others from using the owner’s IP exempt from competition law?)

No. However EU Block Exemptions apply directly (see question 13).

15. Copyright exhaustion

Does your jurisdiction have a doctrine of, or akin to, ‘copyright exhaustion’ (EU) or ‘first sale’ (US)? If so, how does that doctrine interact with competition laws, for example with regard to efforts to contract out of the doctrine, to control pricing of products sold downstream and to prevent ‘grey marketing’?

The EU doctrine of exhaustion of rights applies in Greece. Hence, the rights of an IP right holder are exhausted if its products are circulated within the EU either by himself or with his consent.

This doctrine is now also enshrined in articles 3(1)(d) and 3(3)(c) of the Copyright Act as regards copyright and databases respectively.

These provisions constitute jus cogens and contracting out is not possible.

Attempts to control pricing in downstream sales should be made by means of a price (or margin) recommendation clause, as price fixing in itself constitutes a hardcore restriction under Greek Antitrust Act which may lead to fines.

Grey marketing cannot be contractually prevented.

16. Import control

To what extent can an IP rights holder prevent ‘grey-market’ or unauthorised importation or distribution of its products?

The doctrine of exhaustion of rights as enshrined in EU law applies in Greece. Nonetheless, unauthorized importation or distribution of products outside the EU (i.e. from a third country into the EU) has a different treatment under Greek Law as such doctrine is absent from the international legal sphere. As such, there is nothing to exhaust the right of a Greek IP right holder from preventing unauthorized importation or distribution of products outside the EU.

Further, in limited circumstances, particularly as regards trademarks, an IP right holder can prevent such circulation of its products, if the products’ condition has been altered or deteriorated after they first became available in the market.

Another possibility to prevent grey markets exists if the IP right holder does not voluntarily put the product in the market.

17. Competent authority jurisdiction

Are there circumstances in which the competition authority may have its jurisdiction ousted by, or will defer to, an IP-related authority, or vice versa?

The relevant competition authority in Greece is the Hellenic Competition Commission (“HCC”). Nothing in the Greek Legislation provides for deference to an IP related authority. There are no circumstances in which its jurisdiction will be ousted.

MERGER REVIEW

18. Powers of competition authority

Does the competition authority have the same powers with respect to reviewing mergers involving IP rights as it does with respect to any other merger?

The HCC has the same powers with respect to reviewing mergers involving IP rights as it does with respect to any other merger.

Acquisitions of IP rights may constitute a concentration under the Antitrust Act, thereby triggering merger control. This is relevant in both share and asset acquisitions if IP rights are included in the SPA.

So far as copyright is concerned, it may be relevant to note that concentrations in the Media Sector (publishers, broadcasters, newspapers etc) have a significantly lower threshold than that which applies in relation to other mergers. Such concentrations are governed by article 3(7) Law No. 3592/2007 (the “Media Act”).

19. Analysis of the competitive impact of a merger involving IP rights

Does the competition authority’s analysis of the competitive impact of a merger involving IP rights differ from a traditional analysis in which IP rights are not involved? If so, how?

Irrespective of whether IP rights are involved, the HCC assesses the competitive impact of a merger on the same basis as with any other concentration. The consideration in question is whether a dominant position is created or reinforced. The existence of a significant IP portfolio may lead the HCC to assume a dominant position, especially where barriers to entry to a relevant market can be created.

20. Challenge of a merger

In what circumstances might the competition authority challenge a merger involving the transfer or concentration of IP rights?

The HCC would challenge any merger that would significantly impede effective competition in the market or part of the market, thereby creating or strengthening a dominant position (s. 4c of the Antitrust Act). As regards IP rights, which by nature have an exclusionary effect, third party access to the products protected by them will be relevant. Increasing prices, creating barriers to enter the market and other IP relevant considerations will be taken into account by the HCC.

Challenging the decision of the HCC is possible. That is so especially when the economic benefits presented by the concentration counterbalance the restriction of competition which may result from the merger, as well as the general public and social interest being served.

Procedurally the first step would be to file an application with the Ministry of Economy and Finance. If the decision is not acceptable, an action for judicial review can be brought.

21. Remedies to alleviate anti-competitive effect

What remedies are available to alleviate the anti-competitive effect of a merger involving IP rights? (For example, can mandatory licences be imposed?)

The parties concerned can give undertakings to the HCC in order to obtain clearance.

In relation to a merger involving IP rights, relevant undertakings can include licenses and transfers as well as any other commitments which would eliminate the competition related implications identified by the HCC.

In addition, mandatory licences and other relevant orders can be issued.

SPECIFIC COMPETITION LAW VIOLATIONS

22. Conspiracy

Describe how the exercise, licensing, or transfer of IP rights can relate to cartel or conspiracy conduct (For example, can an agreement between competitors to transfer or license intellectual property constitute an illegal cartel? How have reverse patent settlement payments been treated in your jurisdiction? Patent pools? Copyright collectives? Standard-setting bodies?)

Broadly speaking, any agreement which is made in an anti-competitive context will trigger the application of s.1 of the Greek Antitrust Act, unless it is exempt.

Agreements between undertakings to share markets or not to compete, either through the exercise, licensing or transfer of IP rights, would certainly infringe s.1 of the Greek Antitrust Act. The Technology Transfer Block exemption, applies when assessing any competition law implications of an IP related agreement. The above block exemption does not apply if the agreement relates to a transfer of patents to patent pools.

As regards copyright collectives, reciprocal representation agreements between collecting societies which contain exclusivity clauses are invalid.

To date, there are no cases relating to patent pools, reverse patent settlement payments, or standard setting bodies. Nonetheless it is almost certain that if such a case occurs it will be examined pursuant to the general competition law principles. Specifically, for the assessment of standard-setting agreements, consideration will be possibly given to the EU Commission’s guidelines on Horizontal Cooperation Agreements.

23. (Resale) price maintenance

Describe how the exercise, licensing, or transfer of IP rights can relate to (resale) price maintenance (For example, are licensors of IP restrained from setting minimum resale prices for licensees?)

Under s. 1 of the Antitrust Act, resale price maintenance could constitute a hard-core restriction.

A legitimate way to get around this problem is for the licensor to contractually define the licence fee as a minimum sum of money to be paid for each item the licensee sells. This would effectively achieve to set a minimum price as if the licensee sells the product for a lesser amount he would incur a loss.

Another legitimate possibility would be to use recommended prices or maximum resale prices; however care should be exercised in order to ensure that this practice will not amount to indirect price fixing.

24. Exclusive dealing, tying and leveraging

Describe how the exercise, licensing, or transfer of IP rights can relate to exclusive dealing, tying and leveraging (For example, to what extent can a firm use its IP rights to compel or prevent the use of other products?)

Although tying per se and other similar measures are legal in principle, the position is quite different if it relates to a dominant firm.

Dominant undertakings in Greece are subjected to a measure of control in terms of their conduct of business. Hence tying will most probably be regarded as an abuse.

The same applies when exclusive dealing obligations are imposed, particularly where these lead to a substantial foreclosure of the markets to competitors of the dominant undertaking.

25. Abuse of dominance

Describe how the exercise, licensing, or transfer of IP rights can relate to abuse of dominance (For example, how can a dominant firm’s conduct with respect to its IP rights constitute an abuse of dominance?)

Abuse of dominance is prohibited by s.2 of the Antitrust Act.

The conduct of a dominant undertaking as regards its IP rights may be considered an abuse of such dominance if it exercises or deals with its IP rights in ways which are inconsistent with this provision.

Although in Greece there aren’t many cases addressing this issue, from the limited case law it can be deduced that activities such as unfair licensing terms and discriminatory licensing policies may be abusive.

Greek courts and academics have also examined practices which may amount to an abuse of dominance as regards collecting societies, such as compelling an author to transfer the entirety of its IP rights to a collective society.

26. Refusal to deal and essential facilities

Describe how the exercise, licensing, or transfer of IP rights can relate to refusal to deal and refusal to grant access to essential facilities (For example, is a simple refusal to license IP beyond the scope of competition law? Is mandatory licensing a possible remedy on competition grounds?)

In Greece the contractual principle of freedom to contract, means that the IP right holder has a discretion as to with whom to contract and on what terms. However, in exceptional circumstances the refusal to deal and refusal to grant access to essential facilities may be regarded as an abuse of a dominant position.

Failing to establish a dominant position in situations where an IP right’s holder refuses to deal, the aggrieved party can argue that this refusal to deal although based on the right of the IP right holder to select who he wants to deal with constitutes an abuse of right under s.281 of the Greek Civil Code.

Furthermore in case where the IP rights holder has had a long contracting history with a third party it may not unduly terminate the contractual relationship if financial dependency on the IP right’s holder can be demonstrated, as this would amount to a breach of s. 2a of the Greek Antitrust Act.

REMEDIES

27. Remedies for violations of competition law involving IP

What sanctions or remedies can the competition authority or courts impose for violations of competition law involving IP? (For example, is compulsory licensing available? Fines? Damages? Can divestitures of IP rights be ordered?)

There are a number of remedies and sanctions that may be imposed for competition law violations. These sanctions are of an administrative, civil and criminal nature. Specifically:

Administrative sanctions imposed by the HCC:

- Issue directions obliging the relevant undertakings or group of undertakings to seize infringement and refrain from doing so in the future,

- accept commitments by the undertakings involved and enforce these commitments, (any commitments in the context of IP rights could involve the amendment of any relevant documentation).

- impose conduct measures, or measures of a structural character, expedient to restore competition,

- make recommendations and threaten fines or pecuniary sanctions,

- impose a fine of up to 15% of the annual turnover of the undertaking involved

Civil Sanctions:

Individuals and companies can sue for damages and apply for injunctions and other interim measures.

Criminal Sanctions:

Imprisonment and fines.

28. Competition law remedies specific to IP

Do special remedies exist under your competition laws that are specific to IP matters?

No.

29. Remedies and sanctions

What competition remedies or sanctions have been imposed in the IP context? (Please describe briefly any actual remedies or sanctions.)

Not applicable.

30. Scrutiny of settlement agreements

How will a settlement agreement terminating an IP infringement dispute be scrutinised from a competition perspective? (For example, with respect to a patent infringement claim, could an agreement whereby one party agrees not to compete with respect to the patented product be considered to violate the competition laws? In what circumstances?)

There is no case law or any other guidelines, providing guidance as to how a settlement agreement terminating an IP infringement dispute will be scrutinised from a competition perspective. Certainly both judicial and private settlements are capable of falling within the prohibition of s. 1 of the Greek Antitrust Act as well as art.81 EC if there is a community dimension.

As regards judicial settlements (i.e. agreements to settle executed by the litigants and endorsed by the court), at least on a theoretical basis, mutual concessions are acceptable and presumably inherent in agreements of such nature. Certainly hard core violations or derogations from provisions which are jus cogens will not be endorsed.

ECONOMICS AND APPLICATION OF COMPETITION LAW

31. Economics

What role has economics played in the application of competition law to cases involving IP rights?

Although Greek competition law is increasingly applied with economic analysis playing a central role in its application, the HCC has not yet officially published a discussion paper of that type. However from its underlying policy it becomes apparent that a ‘more economic approach’ will be adopted in the mid term.

Nonetheless strictly speaking economics does not currently play a significant role in the application of competition law in IP related cases.

Note however that to the extent that the ECJ adopts the more economic approach that the EC Commission advocates, the HCC and the Greek courts are bound.

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