The advent of the Common Market has introduced fundamental changes into the British concept of law. The law as taught a generation ago never included treaty conditions overriding rights established by national law. For the many who do not have the time to digest the many puzzling and often conflicting reports relating to Industrial Property, this article presents an assessment for the non-specialist of the law as it stands at the end of 1976 in this important and difficult area.

Industrial property covers patents, trade marks, copyrights and registered designs. These are restricted monopoly rights developed nationally to protect the trader or the individual for his investment. They are important to trade; losses can run into high figures where rights and markets are invaded, so it is even more important that the wider market should contain the same degree of protection as the national market. The countries of the Member States of the Common Market provide that wider market in which there exists a multiplicity of national laws which are themselves subservient to the Treaty of Rome. It is for this reason a problem arises; the national systems are not harmonious for they have grown individually without regard for each other. It is in this conflict between the protection offered by the national law of the home State, the national law of the receiving State and the requirements of Community law where uncertainty has been created.

Uncertainty in the law is bad because the threat of the law can make management hesitate in the fear the other party has some knowledge denied themselves. The position is becoming clearer and broad propositions and general principles are emerging. The trend now seems set so it will be easier in the future to predict with greater accuracy the outcome of a particular action.

The minimum reference material must include the “Treaty establishing The European Economic Community” 1957,—this is reasonably short; the Special English Edition of the Official Journal of the Communities—to be found in specialist libraries; and the Common Market Law Reports, which are easily available.

The position in Europe prior to the inception of the Common Market was quite straightforward. Leaving aside international arrangements, industrial property rights operated within national boundaries alone to give national protection; foreign protection was obtained by complying with the appropriate formalities which would vary from country to country. This was well illustrated in the “4711” trade mark case (Reuter R.J. Co. v. Muhlens [1953] 2 All E.R. 1160). The German owners of “4711” had their British interests expropriated to form an independent company at the end of the 1939-45 world war. An action by the German company to regain their pre-war position failed, which meant that the German trade mark would infringe the British trade mark in Britain even though they were once one and the same. This would probably not be the same today.