E-briefing: Competition Law and IP Rights in Singapore

E-briefing: Competition Law and IP Rights in Singapore
16 Jul 2019

Introduction

  1. The use or grant of IP rights are at risk of contravening competition laws (a) where licencing agreements that may amount to anti-competitive agreements, and (b) where the grant of IP rights enable rights-holders to abuse their dominant market positions.

When Licence Agreements become Anti-Competitive

  1. Agreements that have “the object or effect of preventing, restricting or distorting competition” (hereafter “anti-competitive agreements”) are prohibited under section 34 of the Singaporean Competition Act (Cap 50B, Rev Ed 2006) (“CA(SG)”).
  2. Licencing agreements may be anti-competitive agreements if they
  • fix purchase or selling prices, or any other trading conditions,
  • limit or control production, markets, technical development or investment;
  • share markets or sources of supply (see CA(SG) s 34(2)(a) to (c)).
  1. The Competition and Consumer Commission of Singapore (“CCCS”) will generally not regard a licencing agreement as anti-competitive under CA(SG) s 34 if the market-share of the parties does not exceed 25% (if parties are competitors) or 35% (if parties are non-competitors).
  2. Vertical licencing agreements[1] are specifically exempted from being anti-competitive under CA(SG) s 35 read with paragraph 8 of the Third Schedule of the CA(SG).

Abuse of Dominant Position Created by the Grant of IP Rights

  1. IP right-holders who enjoy a dominant position are prohibited from abusing that position under CA(SG) s 47. The CCCS will make its assessment of dominance based on the particular facts of each case.
  2. Whether or not an IP right-holder is in a position of dominance will depend on whether there are substitutes for the subject matter of the IP right. Ownership of IP rights alone does not create a dominant position.
  3. An example of conduct that amounts to an abuse of dominant position includes conduct that protects, enhances or perpetuates the dominant position of the IP right-holder in a manner unrelated to competitive merit.

Conclusion

  1. In conclusion, IP right-holders are advised to be keenly aware of the scope of their relevant IP rights, and the extent to which their ability to licence them is circumscribed by the relevant competition law legislation applicable in Singapore.

For further information contact:

Brian Law

Partner, Regional Head of IP

brianlaw@eversheds-harryelias.com

Esther Wee

IP Counsel, Registered Foreign Lawyer

estherwee@eversheds-harryelias.com

 


[1] That is, agreements (a) between parties whose respective undertakings operate “for the purposes of the agreement, at a different level of the production or distribution chain”, and (b) that relate to “the assignment to the buyer or use by the buyer of intellectual property rights, provided that those provisions do not constitute the primary object of the agreement and are directly related to the use, sale or release of goods or services by the buyer or its customers (CA(SG), Third Schedule, para 8(2)).

For more information, please contact our Business Development Manager, Ricky Soetikno at rickysoetikno@eversheds-harryelias.com

 

Contact: 

Brian Law

REGIONAL HEAD OF IP
Partner
Head, Intellectual Property
T: 
+65 6361 9873
E: 
BrianLaw@eversheds-harryelias.com
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