Exercise Of Intellectual Property Rights Research Articles

Using Tobacco Plain Packaging to Protect the Human Rights of Children

The societal interest of public health protection has driven Australia’s regulation of tobacco products for many years. The recent decision of the World Trade Organization Appellate Body, Australia – Tobacco Plain Packaging, should encourage states to protect supportable societal interests even if they restrict the exercise of intellectual property rights. As the decision suggests that non-World Trade Organization agreements can support tobacco control measures, this article advocates for greater attention towards the human rights implications of these measures. A primary objective of tobacco plain packaging measures is to protect young people, engaging Australia’s obligations pursuant to the Convention on the Rights of the Child. The article argues that explicit engagement with children and recognition of their human rights in the development and implementation of plain packaging measures could have strengthened Australia’s defence of its plain packaging measures. It provides novel insights into what a child rights-based approach could mean for the future development of tobacco control measures worldwide.

Exercise of economic intellectual property rights to wellknown trademarks.

The exercise of intellectual property rights is the realization bythe subject of intellectual property rights of moral and / or economic intellectual propertyrights, the content of which in relation to certain objects of intellectual propertyrights is determined by the Civil Code of Ukraine and other laws. The exercise of intellectualproperty rights is also the realization of economic intellectual propertyrights by other persons on the basis of the permission of the person who has the rightto allow the use of such object of intellectual property rights.The Law «On Amendments to Certain Legislative Acts of Ukraine ConcerningStrengthening the Protection and Protection of Rights to Trademarks and IndustrialDesigns and Counteraction to Patent Trolling» (which entered into force on August16, 2020) has аmended the Law of Ukraine «On Protection of Rights to Marks forGoods and Services» (hereinafter — the Law). The amendments have removed theprovision that a well-known trademark receives the same legal protection as thetrademark for which the certificate is issued. Such changes have created a gap in thelegislation in part of defining what does the exercising of intellectual property rightsto well-known trademarks include.In this connection the following questions arise: (1) can the right to use a wellknownmark (as well as the mark for which the certificate is issued) be the subject ofa license agreement, a commercial concession agreement; (2) whether it is possible tocontribute economic intellectual property rights to a well-known trademark to the authorizedcapital of a legal entity; (3) whether it is possible to transfer such rights onthe basis of an agreement on the transfer of economic intellectual property rights or to provide as collateral. We believe that these issues should be addressed through theadoption of appropriate amendments to Art. 25 of the Law.In our opinion, the right to use a well-known trademark may be the subject of licenseagreements and commercial concession agreements. According to the currentlegislation of Ukraine, it is impossible to transfer economic intellectual propertyrights to a well-known mark to another person.It is expedient to make changes to Art. 25 of the Law, which would provide necessityof creation and functioning of the State register of Ukraine of well-knowntrade marks.The introduction of the proposed amendments to the legislation of Ukraine in thefield of economic intellectual property will help to improve the relevant legal relationsrelated to the exercise of property rights to well-known trademarks.Key words: trademark, well-known trademark, economic intellectual propertyrights, exercise of economic intellectual property rights, assignment (transfer) of economicrights of intellectual property

Using Tobacco Plain Packaging to Protect the Human Rights of Children

The societal interest of public health protection has driven Australia’s regulation of tobacco products for many years. The recent decision of the Appellate Body in Australia – Tobacco Plain Packaging should encourage states to protect supportable societal interests even if they restrict the exercise of intellectual property rights. As the decision suggests that non-WTO agreements can support tobacco control measures, this article argues that greater attention should be given to the human rights implications of these measures. A primary objective of tobacco plain packaging measures is to protect young people, engaging Australia’s obligations pursuant to the Convention on the Rights of the Child. Despite this objective, the voices of children have been very quiet in disputes about Australia’s plain packaging measures. The article argues that explicit engagement with children and recognition of their human rights in the development and implementation of plain packaging measures could have strengthened Australia’s defence of its plain packaging measures. It provides novel insights into what a child rights-based approach could mean for the future development of tobacco control measures worldwide.

Essence and legal nature of restriction of rights owner's rights in the system of copyright and related rights

Legal protection of intellectual property is based on exclusive rights, which allow the subject to exercise in respect of a particular object of authority to own, use and dispose of it. According to Art. 418 of the Civil Code of Ukraine, such a right is inviolable, because no one can be deprived of it or restricted in its exercise, except in cases clearly defined by law. These restrictions are usually imposed in the public or state interest. Thus, the legislation of Ukraine allows for the restriction of rights in emergency situations (epidemic, catastrophe, natural disaster, etc.). Under these conditions, their use is allowed without the permission of the copyright holder, but with the mandatory payment of compensation. Thus, subjective rights are usually limited to the benefit of state, public and public interests. Any restrictions, termination, revocation of subjective rights are applied solely by law. Most often, such restrictions apply to property rights to intellectual property rights. These limitations are significant. The monopoly of the right holder provides an opportunity to prohibit the use of objects to which the rights belong to him. However, in order to establish a balance between its interests and the interests of society, the state law allows the restriction of rights to intellectual property, which do not create significant obstacles to the realization of property rights and the legitimate interests of intellectual property rights. The limit of law is all the possibilities that a person is able to acquire for himself in connection with the legal definition of his natural rights. Restriction of the right is, as a rule, actions of the third party which are directed on impossibility of realization by the subject of the rights in full. The purpose of the article is to define the concept and essence of restriction of rights, their role in the exercise of intellectual property rights.

LIMITED TURNOVER OF ECONOMIC INTELLECTUAL PROPERTY RIGHTS IN THE FIELD OF NATIONAL SUCURITY AND DEFENSE

During the execution of the state defense order (hereinafter — SDO) may be created objects of intellectual property rights (hereinafter — OIPR), namely: inventions, utility models, industrial designs and topographies of semiconductor products, as well as objects of copyright in the form of computer programs, databases, engineering, technological and software documentation, etc.The Law of Ukraine «On the State Defense Order», adopted in 1999, in no way regulates the legal relationship regarding the creation of OIPR, their use and disposal of economic intellectual property rights to such objects during the SDO. Economic rights to IPR are types of objects of civil rights. Based on the provisions of Art. 178 of the Civil Code of Ukraine objects of civil law are divided into 3 groups depending on degree of their turnover:1) objects that can be freely transferred to another person;2) objects with limited turnover (may belong only to certain participants in the turnover or whose stay in the civil turnover is allowed by special permission);3) objects withdrawn from civil circulation (which are not allowed in civil circulation).Economic rights to certain OIPR are restricted in civil circulation (for example, to a trade name) or withdrawn from civil circulation (for example, to a geographical indication).In addition, the exercise of intellectual property rights may be restricted in certain areas in order to protect the public interest. Such public interest consists, among other things, of the protection of the state interests during the introduction into civil circulation of property rights to OIPR, created during the execution of SDO.Taking into account the provisions of Article 17 of the Law of Ukraine «On Science Parks», we propose to establish an imperative provision in this Law and the draft Law of Ukraine «On Defense Procurement» (Reg. № 2398-d of November 27, 2019). Such changes should stipulate that economic rights to OIPR created during defense procurement are limited in civil turnover. The exercise of rights to such OIPR is possibleonly with the consent of the state customer in the field of defense.Restriction of civil turnover of economic intellectual property rights to these objects should be aimed not only at eliminating the possibility of transferring (assigning) economic rights to such objects, but should also implement other options for their introduction into civil circulation, including the right to use OIPR or to transfer economic rights to the specified OIPR into pledge. In order to improve the legal regulationof these legal relations, it is necessary to amend the legislation of Ukraine in the field of pledge. Peculiarities of securities of intellectual property rights should be enshrined in a separate section of the Law of Ukraine «On Pledge». Such changes should include, inter alia, the obligation to negotiate agreements on pledge of economic rights to OIPR, created during the implementation of the SDO with the public customer. Relevant provisions should be enshrined in the draft Law of Ukraine «On Defense Procurement». The improvement of the legislation studied in the article will contribute to a systematic solving of the issue of establishing the conditions for the execution of economicrights to OIPR, created as a result of SDO, namely the need for such approval of the state customer, that will ensure public interests in the field of national security and defense of Ukraine by the provision of control over the civil turnover of such objects.

Crimes Of Violation Of Annex Article 4 Provision Of The Law On Intellectual And Artistic Works

Fikri mülkiyet haklarının işletilmesi, bu haklara yönelik ihlallere karşı hukuk tarafından koruma altına alınmasını gerekli kılmaktadır. İhlallerin aynı zamanda suç teşkil etmesi durumunda ise cezai müeyyideler de gündeme gelmekte ve böylece fikri mülkiyet haklarının koruması güçlenmektedir. Bu bağlamda internet kullanımının ülkemizde yaygınlaşmasının bir sonucu olarak telif hakları ve bağlantılı haklara konu değerleri içeren eser, icra ve fonogramların elektronik ortamda da sağlıklı bir şekilde korunabilmesi amacıyla 05.12.1951 tarihli ve 5846 sayılı Fikir ve Sanat Eserleri Kanunu (FSEK)’ndaki cezai yaptırımı öngören düzenlemelerden biri de FSEK’in
 71/2 hükmünde bulunmaktadır. Biz de bu çalışmamızda FSEK’in 71/2 hükmünde cezai yaptırıma bağlanan, FSEK’in Ek Madde 4 hükmünün ihlali sonucunda oluşan ve bilişim suçu niteliğinde olan suçları 03.05.2018 tarihinde Türkiye Büyük Millet Meclisine sevk edilen 5846 sayılı Fikir ve Sanat Eserleri Kanununda Değişiklik Yapılmasına İlişkin Kanun Tasarısı’nda öngörülen hükümleri de dikkate alarak inceleyeceğiz.

Technology Protection and Competition Policy for the Information Economy. From Property Rights for Competition to Competition Without Proper Rights?

Over the years, the focus of competition law enforcement regarding the anticompetitive exercise of intellectual property rights has changed considerably. It first shifted from restrictive licensing to the control of refusals to license by market dominating owners of intellectual property (IP). However, it was only in view of exceptional circumstances that competition authorities and courts have considered refusals to constitute an abuse of market power within the meaning of Art. 102 TFEU. The shift became more pronounced when open innovative standardization led to conflicts between market dominating holders of patents reading on interface standards and standard implementers who did not (yet) have or did not have asked for a license. Under the rules of institutionalized open standardization, the holders of patents that are essential for the use of the standard are subject to an obligation to grant licenses at FRAND conditions, thus limiting the availability of injunctive relief from the infringement of their standard essential patents (SEPs). However, the scope and operation of such FRAND commitments, in particular their impact on the patentee’s right to exclude, was controversial under both patent law and competition law. It was by way of an SEP-specific reading of Art. 102 TFEU that the Court of Justice of the EU sought to calm down the conflict. Thus, in its Huawei/ZTE decision, it subjected the holders of SEPs and the implementers of standards to a mandatory, quasi-regulatory framework for FRAND negotiations. For all systems technologies whose operation depends on open interface standardization, this FRAND negotiation framework supersedes the former exceptional circumstances test for assessing abusive refusals to license. Therefore, the shift regarding the implementation of competition policy is a systematic one, albeit one that is limited to IP covering standardization. By contrast, the needs of data accessibility that characterize the digital economy seem to ask for yet another, even broader shift of competition policy and law enforcement. Most lawyers in the fields of both intellectual property and competition law assume that in cases of refusal of access based on some form of IP, in particular on the protection of trade secrets and/or on technical protection measures (TPM), competition law will already provide the necessary remedies for ensuring sufficiently broad access to data. Therefore, they assume that, contrary to the ideas of a minority of academics and the views of some industries, there is not only no need for creating any specific form of “data ownership” or “data producer rights” , but that such additional category of IP would hinder the free development of and innovation in the data economy. The question, however, precisely is whether trade in and sharing of data might benefit from access rules that are not tied to the narrow criteria of controlling the anticompetitive exercise of market power, but instead form part of a broader regulatory framework that would overcome the present de facto distribution of control over and access to data by establishing a proper balance between the rights and duties of data controllers and data users, in particular by providing for a genuine complementarity between individual entitlement and third party access rights. Among the many difficult issues the design of such a new framework will raise, the notion of “property” stands out as a major hurdle to conceptualizing a rights-based regime that combines incentives for the creation and curation of data with such broad rights to access as are needed for the efficient use of multi-purpose data, for transparent trade in and sufficient sharing of data in a dynamic digital economy. The study is not aimed at overcoming that hurdle. It assumes that much of the necessary concepts already exist. However, quite some research is still needed for putting these pieces of a puzzle into the picture of a market order that as a matter of law guarantees all market actors a level playing field by providing for an adequate and efficient distribution of rights, limitations and duties between the holders and the users of data on the one hand, and, on the other, ensures freedom of competition by virtue of rules outlawing anticompetitive practices. After all, it is not the objective and not the function of competition law to order markets, but only to prevent practices that unduly distort or restrict competition. The market order itself is a matter of a framework regulation by general law.

Nadużycie pozycji dominującej przez wykonywanie praw własności intelektualnej w prawie konkurencji Unii Europejskiej

ABUSE OF DOMINANT POSITION IN RELATION TO INTELLECTUAL PROPERTY RIGHTS IN EU COMPETITION LAWThe exercise of intellectual property rights may be contrary to the competition law. The role of first mentioned law is to protect the interests of their owners from unauthorized use by competitors, which naturally leads to the creation form of monopoly. Competition law is aimed at countering monopolies and thereby responding to the restriction of competition, which may also be a result of exercise of intellectual property rights. The publication analyses in what way such rights can abuse dominant position. In particular it will focus on such practices as refusing to grant a license, denying access to a key device or abusing collective management of intellectual property rights. The publication will try to determine conditions which qualify exercise of intellectual property rights as abuse of dominant position.

The Huawei Case and Its Aftermath: a New Test for a New Type of Abuse

Competition law sets limits on the exercise of intellectual property rights by dominant companies, namely in cases involving standard essential patents (SEPs). This article will examine the framework for SEP owners’ right to seek an injunction, discussing competitive problems that such situations may cause as well as the solutions adopted by the European Institutions, comparing them with the US and Japanese approach, and finally reflecting upon the opportunity for a new test for a new type of abuse. Although the three legal orders – US, EU and Japan – apply different laws establishing a general presumption against injunctions in SEPs encumbered with FRAND commitments, their goal is the same: to protect the interest of the SEP holder to obtain a remuneration without an abusive recourse to injunctions. I will argue that, in the EU, the Huawei case created a new test for a new type of abuse, improving the comprehensibility and certainty for the companies involved in standardization across Europe and allowing the harmonization of national judicial solutions regarding the seeking of injunctions in the SEPs context. In spite of some uncertainties, the new test clarifies the role that competition rules should play in cases of abuses by SEPs owners

Activating Actavis in Europe – the proposal of a ‘structured effects-based’ analysis for pay-for-delay settlements

Striking the right balance between the protection of competition law and intellectual property rights is of utmost importance, especially in the pharmaceutical sector; affordable generic drugs are as important as new innovative drugs. Pay-for-delay settlements take place at exactly this intersection. They end patent infringement litigation but, at the same time, delay entry of generic drugs by means of a substantial payment from the brand company to the generic. Whereas the US Supreme Court opted for a rule of reason approach that requires an analysis of the potential anticompetitive effects, the European Commission regarded such settlements as restriction by object, finding an infringement without the need for an effects-based analysis. This approach is criticised and a novel ‘structured effects-based’ approach is proposed allowing the authority to effectively scrutinise such settlements while striking the right balance in order to protect the innovative process and the exercise of intellectual property rights.

ARTICLE 101 TFEU AND MARKET INTEGRATION

Market integration is an objective of Article 101 TFEU. As a result, agreements aimed at partitioning national markets are in principle restrictive of competition by object. The case law on this point has been consistent since Consten-Grundig. Making sense of it, however, remains a challenge. The purpose of this article is to first show how the methodological approach followed by the Court of Justice changes when market integration considerations are at stake. Second, this article explains why and when restrictions on cross-border trade have been found not to restrict competition by object within the meaning of Article 101(1) TFEU. An agreement aimed at partitioning national markets is not as such contrary to Article 101(1) TFEU if the analysis of the counterfactual reveals that it does not restrict inter-brand and/or intra-brand competition that would have existed in its absence. It is possible to think of three scenarios in this regard: (1) an agreement may be objectively necessary to achieve the aims sought by the parties; (2) a clause may be objectively necessary for an agreement; and (3) competition is precluded by the underlying regulatory context (as is the case, in particular, when the exercise of intellectual property rights is at stake).

ABA Comments on KFTC's IPR Guidelines

Korea's Fair Trade Commission revised its Review Guidelines on Unfair Exercise of Intellectual Property Rights under Korea's Monopoly Regulation and Fair Trade Act in early 2016. Earlier, 4 sections of the American Bar Association submitted comments on revisions to these guidelines. This paper compares the revised IPR Guidelines with the ABA sections' comments.

Article 101 TFEU and Market Integration

Market integration is an objective of Article 101 TFEU. As a result, agreements aimed at partitioning national markets are in principle restrictive of competition by object. The case law on this point has been consistent since Consten-Grundig. Making sense of it, however, remains a challenge. The purpose of this piece is to show, first, how the methodological approach followed by the Court of Justice changes when market integration considerations are at stake. Secondly, it explains why and when restrictions on cross-border trade have been found not to restrict competition by object within the meaning of Article 101(1) TFEU.An agreement aimed at partitioning national markets is not as such contrary to Article 101(1) TFEU if the analysis of the counterfactual reveals that it does not restrict inter-brand and/or intra-brand competition that would have existed in its absence. It is possible to think of three scenarios in this regard: (i) an agreement may be objectively necessary to achieve the aims sought by the parties; (ii) a clause may be objectively necessary for an agreement and (iii) competition is precluded by the underlying regulatory context (as is the case, in particular, when the exercise of intellectual property rights is at stake).

Comment of the Global Antitrust Institute, George Mason University School of Law, on the Korea Fair Trade Commission's Revised Review Guidelines on Unfair Exercise of Intellectual Property Rights

This comment is submitted to Korea's Fair Trade Commission (KFTC) by the Global Antitrust Institute (GAI) at George Mason University School of Law in response to the KFTC's December 17, 2014 revisions to its Review Guidelines on Unfair Exercise of Intellectual Property Rights. The GAI Competition Advocacy Program provides a wide-range of recommendations to facilitate adoption of economically sound competition policy, including how to analyze conduct involving standard-essential patents.

Comment of the Global Antitrust Institute, George Mason University School of Law, on the Korea Fair Trade Commissionns Amendment to Its Review Guidelines on Unfair Exercise of Intellectual Property Rights

Comment of the Global Antitrust Institute, George Mason University School of Law, on the Korea Fair Trade Commissionns Amendment to Its Review Guidelines on Unfair Exercise of Intellectual Property Rights

For a Holistic and Systemic Approach to IP Law

It is almost superfluous to point out how complicated the overall IP regulatory framework has become compared to the classic representation thereof set out in the great Paris and Berne Conventions, and related national legislations at the end of the 19th century – a situation that has intensified especially in the past 50 years with the unrelenting emergence of new technologies and forms of communication. In short, the intrinsic diversity of the subject matter, function and key features of the single fundamental paradigms (patents, trademarks and copyright) has been more and more ‘‘aggrieved’’ by: (a) the internal diversification of the paradigms themselves (just think of the variety of models for protecting technological innovation or the array of neighbouring rights regimes within copyright law); (b) the increasing reciprocal ‘‘hybridisation’’ and overlapping of the paradigms in question (just think of the multiform protection for industrial designs); and (c) the acknowledgement of the necessary ‘‘interference’’ of competition law (unfair competition and antitrust) with IP law. All this, moreover, being the target of an ever-growing regulatory deluge, both domestic and international, in particular at the EU level. Now, such ongoing fragmentation of the IP regulatory framework has fostered the rise of a line of thought (and teaching) that seeks to construe the single IP paradigms in isolation: not just one from the other but also from the overall regulatory framework concerning the activities and interests involved in the exercise of intellectual property rights – a framework that obviously includes, at its apex, constitutional principles. That ‘‘separatist’’ trend (which can realistically be associated with a method of rulemaking increasingly inspired by sectorial interests and thus ever more

Institutional Thinking on the Prevention of IPR Abuse

对知识产权滥用的认识,应当构建在清晰梳理知识产权行使行为与知识产权滥用 行为之关系的基础上。它们两者之间虽有联系,但决然不能简单等同,因为超越知识 产权权利范围行使权利的行为不是滥用行为,知识产权垄断行使行为是否构成滥用需 要依其是否具有正当性而做出判断,知识产权不当行使行为与滥用行为有着本质不 同。防止知识产权滥用,需要制度理性的思考。防止知识产权滥用的制度理念,一是 在法律正义的基础上解决知识产权的利益冲突,对利益冲突与法律正义作出正确的判 断,在利益实现与秩序安全之间寻找衡平点;二是在私权基础上关注知识产权的社会 功能。现代社会不仅需要高扬私权保护的旗帜,也需要更多地关注权利的社会功能, 尤其需要关注社会发展与知识产权社会功能的强化之间的关系。 Our understanding of the abuse of intellectual property rights (IPR) should be based on a thorough clarification of the relationship between the exercise of such rights and their abuse. Although the two are related, they definitely cannot be simplistically equated. This is because exercising such rights outside the sphere of IPR is not an abuse of IPR. Whether the act of exercising IPR on an exclusive basis constitutes an abuse of IPR must be determined by whether it is legitimate. Inappropriate exercise of IPR is essentially different from abuse of IPR. To prevent acts of IPR abuse, we need to think in terms of institutional rationality. Such thinking is twofold. On the one hand, it involves resolving conflicts of interests arising from IPR use on the basis of legal justice and making correct judgments about conflicts of interests and legal justice, so as to strike a balance between the satisfaction of interests and public order and security. On the other, it encourages us to devote more attention to the social function of IPR on the basis of private rights. Modern societies are not only obliged to promote the cause of protecting private rights; they should also place greater emphasis on the social function of rights, and especially on enhancing the relationship between social development and the social function of IPR.

A balancing act: IPRs and public agriculture research

International Agriculture Research Centres (IARCs) and other public research organisations increasingly find themselves exposed to intellectual property rights due to inter alia the advent of the intellectual property system, privatisation of research and increased collaboration with the private sector. There is an inherent theoretical conflict in the application of private rights for the provision of public goods given that intellectual property rights (IPRs) introduce excludability to a good. But there is a distinction between the existence and exercise of IPRs. The latter, conducted creatively, can mitigate the excludability effect brought about by the former. Examples of the creative exercise of IPRs illustrate that IP capacity is vital. IARCs and other public research organisations particularly those in developing countries must invest in IP capacity in order to formulate creative IP policies and strategies and implement them in a manner that ensures their public goods mandate is not compromised.

Beyond Refusal to Deal: A Cross-Atlantic View of Copyright, Competition and Innovation Policies

Conventional wisdom holds that the European Union has opted to apply its competition law to the exercise of intellectual property rights to a much greater extent than has the United States. We argue that, at least in the context of copyright protection, this conventional wisdom is false. While European antitrust regulation of refusal to license one's intellectual property does seem much more robust and activist than U.S. antitrust regulation of similar conduct, focusing solely on one narrow aspect of antitrust doctrine — the treatment of a unilateral refusal to deal — tells less than half the story. Once various doctrines of copyright law are taken into account, the substantive difference between the European and American approaches not only narrows, but in some key respects is reversed. While European jurisdictions have relatively expansive copyright protection which may require antitrust intervention to check anti-competitive uses of copyrighted works, American copyright law provides stronger internal limits on copyright protection, which thereby lessens the need for resort to antitrust law as an external check on anti-competitive uses of copyrighted works. Furthermore, when the broader impact that antitrust law might have on the exercise of IPRs in the United States is considered (not only in substance, but also in antitrust process), it becomes apparent that in key respects, when innovative-competition is at stake, U.S. law grants overall weaker copyright protection than that available in Europe. We also explain why the two jurisdictions have adopted distinct approaches to resolving similar problems and evaluate those approaches.

Controlling the Unilateral Exercise of Intellectual Property Rights: A Multitude of Approaches But No Way Ahead? The Transatlantic Search for a New Approach

The complex interface between intellectual property law and law is currently under review both in the US and the EU. One field of contention is the unilateral exercise of intellectual property rights. This paper presents the different approaches recently taken by different US courts, critically reviews the ECJ's jurisprudence in the much-debated decisions Magill and IMS Health and discusses the test proposed by the EU Commission in its Discussion Paper on Exclusionary Abuses, finding that none of the approaches has addressed the problem convincingly so far. In searching for a way ahead, the paper attempts to systematize the different positions taken in the literature, contrasting in particular an law approach and a competition law approach. It argues that a pure law popular in the US, is not fully applicable in the EU where IP law remains national and must respect the supremacy of the EU rules which must be applied uniformly in all Member States. Other theories which strive to take both IP and law rationales into account - e.g. Heinemann's scope of reward-theory - leave open the criteria on the basis of which this shall be done. The most promising approach, then, may be to shift back attention towards policy rationales and to focus on the concept of contestable markets, as by Heinemann and Drexl have recently proposed. The threshold for antitrust intervention must, however, remain high. The three criteria used in the telecommunications sector to decide when regulation is justified may be of help to determine cases of legitimate intervention.