A new-Madisonian approach to TM settlements...?

My colleague Edwin Bond and I have commented on the recent ruling by the US Court of Appeals in 1-800 Contacts v FTC. 1-800 Contacts had been found at first instance to have broken US antitrust law by entering into a series of settlement agreements limiting the use that competitors could make of their trademarks online.  

As we explain, the reversal of the first instance judgment by the US Court of Appeals seems to represent something of a New Madisonian approach to the underlying IP rights. However, the judgment does not represent a wholesale acceptance of the idea that antitrust has no role to play in the exercise of IP, as it notes the non-exclusionary nature of trademarks, by contrast to other monopoly rights. From a UK/EU perspective, we are not convinced that such a wide approach could safely be taken to settling TM disputes on terms which significantly fetter rivals' ability to engage in keyword bidding or negative matching in an online setting. More details in the full article...