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Restrictions go beyond inducements and disadvantages—formal, legal interpretation is key to avoid effects topicality and mixing burdens

Sourcebook on Intellectual Property Law

Dr Peter J Groves, LLB, MA, PhD, MITMA, Solicitor

Then I come to the word 'restrict', A person though not prohibited is restricted from using something if he is permitted to use it to a certain extent or subject to certain conditions but otherwise obliged not to use it, but I do not think that a person is properly said to be restricted from using something by a condition the effect of which is to offer him some inducement not to use it, or in some other way to influence his choice. To my mind, the more natural meaning here is restriction of the licensee's right to use the article and I am fortified in that opinion by two considerations. If I am right in thinking that 'require' and 'prohibit' refer to legal obligations to buy or not to use, I see nothing to suggest that 'restrict' is used in quite a different sense which has nothing to do with legal obligation but which relates to financial disadvantage. And, second, to say that the effect will be to restrict seems to me much more appropriate if restriction refers to restriction of the licensee's right to use than it would be if restriction refers to an inducement not to use. The legality of the condition has to be determined at the time when the licence is granted and if the terms of the conditions are such as to restrict the licensee's right to use an article in certain circumstances then it can properly be said that its effect will be to restrict him from using it. But if, as in the present case, all that can be said is that the effect of the condition in some circumstances will be to offer a financial advantage, which may be considerable or may be small, if the licensee uses the licensor's goods, I do not see how it can be said that its effect will be to restrict the licensee from using other goods. The licensee may be influenced by this financial advantage or he may, perhaps for good reason, choose to disregard it; it is impossible to say in advance what the effect will be.