The specific subject-matter of the right
The greatest defect in the existence/exercise distinction is that it is too vague to be of much use by itself. It provides no guidance as to when the exercise of the right will fall foul of Articles 28 and 30. Those who criticize the European Court of Justice on this ground are perhaps being a little harsh. They are ascribing to the distinction ambitions which it never pretended to have. It was never meant to solve, by itself, all the problems that arise as a result of the conflict between intellectual property rights and the free movement of goods. In fact, it is doubtful whether it was meant to solve any specific problem.
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