COMPETITION LAW

Competition law includes mergers and cartels but our primary areas of interest are best described as 'single-firm' conduct and the intersection of intellectual property laws with competition law. Single firm conduct includes the rules regarding pricing such as price discrimination, re-sale price maintenance, predatory pricing and promotional allowances; the rules regarding distribution practices such as refusal to deal, exclusive dealing, and tied selling; and unfair sales practices such as misleading advertising.

Increasingly intellectual property matters are being considered with regard to competition law doctrines, particularly in the U.S. and the E.U. Intellectual Property laws developed before competition laws. The rationale for IP laws is that because ideas can be so easily stolen and copied, it is necessary to grant the inventors a limited monopoly in the use of their invention or creation in order to provide enough incentive for creation and/or investment. It is believed that a limited right to exclude others will maintain a level of innovation in society that will offset the losses caused by the monopolies. On the other hand Robert Landes and Richard Posner have written, "That belief cannot be defended on the basis of current knowledge". Competition law is concerned with the acquisition or maintenance of monopoly power by unacceptable means and competition authorities are showing an increasing interest in intellectual property issues.

With respect to pricing, distribution practices and unfair sales practices, we have advised clients on re-sale price maintenance, price discrimination and buying groups, promotional allowances, exclusive dealing, misleading advertising, multi-level marketing, testimonials, promotional contests, warranties and refusals to deal and generally with respect to abuse of a dominant position.

With respect to competition law issues in intellectual property matters we have advised clients on cross-border patent disputes and the abuse of patent rights, and used a competition law analysis to successfully re-frame a client's appeal to the Supreme Court of Canada in a patent dispute.

Our Publications and Updates in this Area are available as Resources.