Parallel imports: an ECJ decision (1) Quiz



JUDGMENT OF THE COURT (Second Chamber) 22 December 2008 (*)(Trade marks – Pharmaceutical products – Repackaging – Parallel imports – Substantial change in appearance of the packaging – Obligation of prior notice)

In Case C276/05

The Wellcome Foundation Ltd
v
Paranova Pharmazeutika Handels GmbH

Community legislation

3 Article 7 of Directive 89/104, entitled ‘Exhaustion of the rights conferred by a trade mark’, provides:

1. The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.

2. Paragraph 1 shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialisation of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.’

On those grounds, the Court (Second Chamber) hereby rules:

1. Article 7(2) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, is to be interpreted as meaning that, where it is established that repackaging of the pharmaceutical product is necessary for further marketing in the Member State of importation, the presentation of the packaging should be assessed only against the condition that it should not be such as to be liable to damage the reputation of the trade mark or that of its proprietor.

2. Article 7(2) of Directive 89/104, as amended by the Agreement on the European Economic Area of 2 May 1992, is to be interpreted as meaning that it is for the parallel importer to furnish to the proprietor of the trade mark the information which is necessary and sufficient to enable the latter to determine whether the repackaging of the product under that trade mark is necessary in order to market it in the Member State of importation.