E2002P0003

Request for an Advisory Opinion from the EFTA Court by Høyesterett by decision of that court of 17 December 2002 in the case of Paranova AS v Merck & Co Inc., et al

(Case E-3/02)

(2003/C 75/12)

A request has been made to the EFTA Court by decision of 17 December 2002 of Høyesterett (Supreme Court), Norway, which was received at the Court Registry on 24 December 2002, for an Advisory Opinion in the case of Paranova AS v Merck & Co Inc., et al., on the following questions:

1. Do "legitimate reasons" exist within the meaning of Article 7(2) of Council Directive 89/104/EEA, cf. Articles 11 and 13 of the EEA Agreement, in a case where the conditions for permitting a parallel importer to undertake repackaging of pharmaceutical products and reaffixing of the trade mark have been met, but where the trade mark proprietor opposes the marketing of the repackaged product with the trade mark reaffixed in a packaging that the parallel importer has equipped with coloured stripes and/or other graphic elements that make up a part of the design of the packaging?

2. In answering the question, it should be indicated whether the criterion of necessity that the Court of Justice of the European Communities has applied in interpreting "legitimate reasons" within the meaning of Article 7(2) of Council Directive 89/104/EEA applies also to the more specific design of the packaging, or if the more specific design of the packaging is to be assessed solely on the basis of the condition that the repackaging must not adversely affect the reputation of the trade mark proprietor or the trade mark.