Judgment of the Court (Fifth Chamber) of 10 November 2016 (request for a preliminary ruling from the Sø- og Handelsretten — Denmark) — Ferring Lægemidler A/S, acting on behalf of Ferring BV v Orifarm A/S

(Case C-297/15) (1)

((Reference for a preliminary ruling - Trade marks - Directive 2008/95/EC - Article 7(2) - Medicinal products - Parallel import - Partitioning of the markets - Need for the repackaging of the product bearing the mark - Medicinal product placed on the exporting market and importing market by the trade mark proprietor with the same kind of packaging))

(2017/C 014/12)

Language of the case: Danish

Referring court

Sø- og Handelsretten

Parties to the main proceedings

Applicant: Ferring Lægemidler A/S, acting on behalf of Ferring BV

Defendant: Orifarm A/S

Operative part of the judgment

Article 7(2) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that a trade mark proprietor may object to the continued marketing of a medicinal product by a parallel importer, where that importer has repackaged that medicinal product in a new, outer packaging and reaffixed the trade mark, where, first, the medicinal product at issue can be marketed in the importing State party to the EEA Agreement, of 2 May 1992, in the same packaging as that in which it is marketed in the exporting State party to the EEA Agreement and, second, the importer has not demonstrated that the imported product can only be marketed in a limited part of the importing State’s market, and those are matters which it is for the referring court to determine.

(1)  OJ C 294, 7.9.2015.