1.8.2 - Exploitation of an immaterial object

Commercial use. Characteristic for IP-rights is that the protection offered is in principle limited to commercial use of the immaterial object concerned. IP-rights generally prohibits third party exploitation of an invention, trade mark or work of authorship, but do not cover private, non-commercial use of the protected subject matter.

Article 10(2) of the EU Trade Marks Directive, for instance, gives the proprietor of a trade mark protection against use of a similar sign “in the course of trade”. Copyright does provide protection to, generally, the reproduction of a work or its communication to the public, but article 5 of the Copyright Directive of 2001 contains a large and detailed catalogue  of allowed exceptions to these rights, which  effectively exempt from protection the non-commercial, private use of the work.

Use. The reach of IP protection is generally limited to the use of the immaterial object. If a third party does not use that object but merely takes advantage of its existence then such activities do not amount to an IP infringement on that IP-right and the question then remains whether such activities may nevertheless qualify as an act of unfair competition because of additional circumstances.