Competition law in attempt to understand (luxury) trademarksClick here to read the full article online
The paper analyses the legality of online sales bans in selective distribution agreements in the EU, focusing on the “luxury brand image” justification as per the CJEU judgements and the decisions of the EC and national competition authorities. The paper questions the criteria for determining what constitutes a luxury trademark, and whether it is fair to distinguish (or even discriminate) between luxury and non-luxury trademarks, considering that both should have effective control and choice of the distribution of their goods. The paper concludes that the success of the selective distribution system depends on the effective control the trademark owner exercises over it, irrespective of whether or not it is covered by the aura of luxury. The non-luxury brands currently may justify their restrictions on sales on third party platforms under the unfair competition grounds. The selective distribution system should aim at protecting trademark image, which may not necessarily be luxury.