Keywords
Summary

Keywords

Approximation of laws - Trade marks - Directive 89/104 - Parallel importation, after repackaging and reaffixing of the trade mark, of pharmaceutical products into another Member State - Opposition by the trade mark owner - Permissibility - Condition - No artificial partitioning of the markets between Member States - Criteria of assessment - Prior notice to the trade mark owner - Scope of the duty

(Council Directive 89/104, Art. 7(2))

Summary

$$Article 7(2) of First Council Directive 89/104 relating to trade marks must be interpreted as meaning that a trade mark proprietor may rely on its trade mark rights in order to prevent a parallel importer from repackaging pharmaceutical products unless the exercise of those rights contributes to artificial partitioning of the markets between Member States. Where a proprietor relies on its trade mark rights to prevent repackaging where that is necessary for the pharmaceutical products concerned to be marketed in the importing State, that contributes to such artificial partitioning.

Replacement packaging of pharmaceutical products, rather than simply sticking labels on those packages, is objectively necessary if, without such repackaging, effective access to the market concerned, or to a substantial part of that market, must be considered to be hindered as the result of strong resistance from a significant proportion of consumers to relabelled pharmaceutical products.

A parallel importer must, in any event, in order to be entitled to repackage trade-marked pharmaceutical products, fulfil the requirement of prior notice. If the parallel importer does not satisfy that requirement, the trade mark proprietor may oppose the marketing of the repackaged pharmaceutical product. It is incumbent on the parallel importer himself to give notice to the trade mark proprietor of the intended repackaging. In the event of dispute, it is for the national court to assess, in the light of all the relevant circumstances, whether the proprietor had a reasonable time to react to the intended repackaging.

( see paras 35, 45, 54, 68, operative part 1-3 )