Crew Socks What Odes It Mean

European law: the mark and parallel imports

D years stop Boehringer et al / Swingward and Dowelhurs, rendered April 26, 2007, Court of Justice of European Communities was asked about the scope of the exhaustion of rights conferred by the national mark under Article 7, paragraph 2 of Directive 89/104 [ Directive of 21 December 1988 to approximate the laws of Member States on trademarks, 89/104/EEC - OJ 1989 L40, p.1, as amended by the Agreement on the European Economic Area of 2 May 1992] whereby unless legitimate reasons, the right conferred by the mark does not entitle its owner to prohibit its use in relation to goods which have been put on the market in the Community under this brand by the proprietor or with his consent. Are considered particularly good reason, the modification or alteration of products once they are in commerce.

It was of whether a manufacturer of pharmaceutical products, holds a national brand, could oppose further commercialization of its products by parallel importers in another State of the European community, it appears that the different products was modified by affixing the original packaging with a label bearing the name of the importer and number of parallel importation.

is by determining the "specific purpose" of the exclusive right ECJ determine the influence of EU competition law on national intellectual property . Indeed, everything that enters the specific object is theoretically not affected by the law. However, if the owner goes beyond this specific subject, the use of its mark is unfair and undermines the free flow of goods and services. The improper exercise of the mark inmate may be punished without the existence of the trademark right is challenged.

The ECJ thus defining the specific subject of a mark as the purpose " ensure the guarantee of origin of the product bearing that mark " interprets Article 7 § 2 of Directive 89/104, by framing the right of the trademark owner to oppose further commercialization of a pharmaceutical product imported from another Member State in its internal and external packaging original, together with a additional external label affixed by the importer, and by making this right of objection subject to five cumulative conditions:

• The use of trade mark rights by the licensee shall not contribute to artificial partitioning of the market.
• It is the parallel importer to demonstrate that the new labeling does not affect the original condition of the product inside the packaging.
• The author of new product labeling and the name of the manufacturer must be clearly indicated on the packaging.
• The presentation of the product which is the subject of a new labeling should not harm the reputation of the mark and its proprietor (eg poor quality or untidy or defective condition of the label. It is appropriate, the trademark holder to prove that damage was to the reputation of its brand.
• The importer must prior to the sale of the product, notify the owner of the brand and its application to provide a specimen having been relabelled.

If these five conditions are met by the trademark holder can prevent parallel imports. Otherwise it will support the parallel importation.

© Xavier Cerf - lawyer