Parallel Trading

On 1 April 2008, Advocate General Ruiz-Jarabo Colomer gave his opinion on a reference from a Greek court, in the context of disputes between Greek pharmaceutical wholesalers and GlaxoSmithKline Greece, asking whether a refusal by a dominant company to meet the full orders of wholesalers, with the objective of preventing parallel trade, amounts to an abuse of dominance contrary to Article 82 of the EC Treaty. The Advocate General considers that such conduct would amount to an abuse of dominance, but that it could, in theory, be objectively justified. Such justification could be based on the fact that the undertaking was compelled to adopt its conduct by the regulation of the market, that the conduct was intended to protect the legitimate commercial interests of the undertaking and that the conduct had economic benefits. However, the Advocate General does not believe that GlaxoSmithKline has shown grounds for such objective justification in the circumstances of this case.

The European Court of Justice has ruled that the Trade Marks Directive has excluded the possibility of member states introducing a doctrine of worldwide exhaustion of trade mark rights.

In a case involving the promotion of Dior perfumes, the European Court of Justice (ECJ) has upheld the Advocate General's Opinion that, where a trade mark and copyright owner has placed his goods on the market in the EC, he cannot then stop those goods being resold or advertised unless he can show that in the particular circumstances it will seriously damage the reputation of the goods (PLC, 1997, VIII(6), 57).

The European Court of Justice (ECJ) has held that an EU state cannot bar imports of goods trade marked in another state unless there is a serious risk of public deception.

In several joined cases the European Court of Justice (ECJ) has ruled that, provided certain conditions are met, wholesalers who repackage drugs in new packs to which they have refixed the manufacturer's trade mark without consent will not be infringing the trade mark.

The European Court of Justice (ECJ) has confirmed that, in the absence of European Community trade marks legislation, individual countries can decide what marks can benefit from trade mark protection (including numbers (the 'Quattro' car)) so long as that protection does not infringe the free movement of goods between member states. The EC directive harmonising national trade mark protection laws was adopted in 1988 and will be implemented in the UK later this year by the Trade Marks Bill.

A prohibition in German law on the use of the ® symbol in relation to unregistered trade marks was held by the European Court of Justice (ECJ) to infringe Article 30 of the EC Treaty, in that it was capable of hindering trade between member states and was not justified on other grounds.