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The Interplay between Antitrust Law and Intellectual Property Law in South Africa: A Critical Analysis of the OECD Recommendation on Intellectual Property Rights and Competition

Abstract

The interplay between competition law and intellectual property remains the subject of much debate. Intellectual property creates monopolistic rights to protect and reward innovation and incentivise creators; whilst competition law seeks to balance these monopolistic rights by maintaining an open and competitive market. Competition and intellectual property laws, however, share similar objectives, namely improving consumer welfare and encouraging innovation across markets. Competition law and intellectual property rights regimes are governed by separate legislative instruments; separate adjudicative bodies and have different applicable policy considerations. This paper analyses the relationship between competition and intellectual property laws, with a specific focus on the Organization for Economic Cooperation and Development (“OECD”) Recommendation on intellectual property rights and competition (“Recommendation”). This paper examines the historical context, legal framework, and most importantly the practical implications of this interplay, highlighting the challenges and opportunities it presents for fostering innovation, promoting competition, and safeguarding consumer welfare. In doing so, this paper outlines notable developments emanating from leading competition agencies across the globe.

Authors

Portrait image of Michael Currie
Michael Currie
Partner, Primerio, South Africa

Michael-James Currie is a Director of Primerio and co-founder of the Primerio South African practice. His regulatory and commercial law practice is pan-African and he has practiced across several countries and regional blocs. Mike has consistently been recognised as a “Best Lawyer in South Africa” for Competition Law and also serves as the “Global Law Expert for Competition Law in Nigeria.”

Portrait image of Joshua Eveleigh
Joshua Eveleigh
Associate (designate), Primerio, South Africa

Joshua Eveleigh is an associate (designate) at Primerio and has represented and advised numerous clients before South Africa’s competition authorities in regard to allegations of cartel conduct, restrictive vertical practices, abuse of dominance and price discrimination and has successfully assisted in the preparation of merger filings across several sectors and jurisdictions , including: South Africa, COMESA, Zimbabwe and Morocco.

Portrait image of Stephany  Torres
Stephany Torres
Senior Associate, Primerio, South Africa

Stephany Torres is a senior associate at Primerio and has advised on a range of regulatory issues, including South African and African competition law including in relation to merger control, joint ventures, dawn raids, and cartel investigations, prohibited practices, corporate leniency applications, horizontal and vertical restrictive practices, abuse of dominance, and applications for exemptions and interim relief, as well as the criminal provisions under the Competition Act.

Companies

Primerio

Primerio was formed as the first Pan-African boutique competition law firm in 2015, consisting of a team of experienced competition law practitioners, former regulators and economists, offering first-class competition and antitrust counsel to clients across the African continent. The services offered by the Primerio team have developed into several core competencies in addition to the antitrust practice. These include white collar crime, complex commercial litigation, corporate and project development expertise, and a growing regulatory and foreign direct investment department. With the growth of Primerio, as well as our clients’ requirements for an African-wide offering, Primerio’s services and jurisdictional reach expanded considerably. In 2021, Primerio opened a dedicated South African office. The practice is operationally headquartered in Johannesburg. Our team provides experienced and focused counsel on an array of commercial and legal issues commonly faced by the foreign newcomer, as well as by established African corporations. Equally, the standard of service, both in quality and turnaround time, meets the expectation of leading law firms who regularly brief our practitioners. It is, however, our commercially orientated, client-first relationships and thought leadership that sets us apart and ensures that our high-quality legal advice and counselling across multiple jurisdictions delivers award winning results.

Primerio

Primerio was formed as the first Pan-African boutique competition law firm in 2015, consisting of a team of experienced competition law practitioners, former regulators and economists, offering first-class competition and antitrust counsel to clients across the African continent. The services offered by the Primerio team have developed into several core competencies in addition to the antitrust practice. These include white collar crime, complex commercial litigation, corporate and project development expertise, and a growing regulatory and foreign direct investment department. With the growth of Primerio, as well as our clients’ requirements for an African-wide offering, Primerio’s services and jurisdictional reach expanded considerably. In 2021, Primerio opened a dedicated South African office. The practice is operationally headquartered in Johannesburg. Our team provides experienced and focused counsel on an array of commercial and legal issues commonly faced by the foreign newcomer, as well as by established African corporations. Equally, the standard of service, both in quality and turnaround time, meets the expectation of leading law firms who regularly brief our practitioners. It is, however, our commercially orientated, client-first relationships and thought leadership that sets us apart and ensures that our high-quality legal advice and counselling across multiple jurisdictions delivers award winning results.

Primerio

Primerio was formed as the first Pan-African boutique competition law firm in 2015, consisting of a team of experienced competition law practitioners, former regulators and economists, offering first-class competition and antitrust counsel to clients across the African continent. The services offered by the Primerio team have developed into several core competencies in addition to the antitrust practice. These include white collar crime, complex commercial litigation, corporate and project development expertise, and a growing regulatory and foreign direct investment department. With the growth of Primerio, as well as our clients’ requirements for an African-wide offering, Primerio’s services and jurisdictional reach expanded considerably. In 2021, Primerio opened a dedicated South African office. The practice is operationally headquartered in Johannesburg. Our team provides experienced and focused counsel on an array of commercial and legal issues commonly faced by the foreign newcomer, as well as by established African corporations. Equally, the standard of service, both in quality and turnaround time, meets the expectation of leading law firms who regularly brief our practitioners. It is, however, our commercially orientated, client-first relationships and thought leadership that sets us apart and ensures that our high-quality legal advice and counselling across multiple jurisdictions delivers award winning results.

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