Case C‑642/16

Junek Europ-Vertrieb GmbH

v

Lohmann & Rauscher International GmbH & Co. KG

(Request for a preliminary ruling from the Bundesgerichtshof)

(Reference for a preliminary ruling — Intellectual property — Trade mark law — Regulation (EC) No 207/2009 — Article 13 — Exhaustion of the rights conferred by a trade mark — Parallel imports — Repackaging of the product bearing the mark — New labelling — Conditions applicable to medical devices)

Summary — Judgment of the Court (Fifth Chamber), 17 May 2018

1. EU trade mark—Effects of the EU trade mark—Exhaustion of the rights conferred by a trade mark—Parallel import of medicinal products after repackaging and reaffixing of the trade mark—Opposition of the proprietor—Unlawful—Conditions—Artificial partitioning of the markets between the Member States—Necessary repackaging of the medicinal product—Criteria for assessment

   (Council Regulation No 207/2009, Art. 13(2); Council Directive 89/104, Art. 7(2))

2. EU trade mark—Effects of the EU trade mark—Exhaustion of the rights conferred by a trade mark—Parallel imports of pharmaceutical products after overstickering—Opposition by the proprietor—Lawfulness—Limits

   (Council Regulation No 207/2009, Art. 13(2); Council Directive 89/104, Art. 7(2))

3. EU trade mark—Effects of the EU trade mark—Exhaustion of the rights conferred by a trade mark—Parallel imports, after adding an additional label, of medical devices—No repackaging of the product bearing the mark—Opposition by the proprietor—Unlawful

   (Council Regulation No 207/2009, Art. 13(2))

1.  See the text of the decision.

   (see paras 23-26, 30)

2.  See the text of the decision.

   (see paras 27-29)

3.  Article 13(2) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as meaning that the proprietor of a mark cannot oppose the further commercialisation, by a parallel importer, of a medical device in its original internal and external packaging where an additional label, such as that at issue in the case in the main proceedings, has been added by the importer, which, by its content, function, size, presentation and placement, does not give rise to a risk to the guarantee of origin of the medical device bearing the mark.

   Given that the packaging of the medical device concerned has not been modified and the original presentation of the packaging has not been affected other than by the attachment of a small label, which does not conceal the mark and which designates the parallel importer as responsible for placing it on the market by setting out his details, a barcode and a central pharmacological number, it cannot be held that the attachment of such a label constitutes repackaging within the meaning of the judgments of 23 April 2002, Boehringer Ingelheim and Others (C‑143/00, EU:C:2002:246), and of 26 April 2007, Boehringer Ingelheim and Others (C‑348/04, EU:C:2007:249).

   Consequently, it cannot, in any event, be held that the attachment of such a label affects the specific purpose of the mark, which is to guarantee to the consumer or end user the origin of the product that it identifies.

   (see paras 35, 36, 39, operative part)