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In the recent decision1 of The Wellcome Foundation Ltd v Paranova Pharmazeutika Hendels GmbHthe European Court of Justice has left room for only limited objections by brand owners to aparallel importer’s new presentation of repackaged pharmaceuticals.
commercialisation of the goods. Various ECJ decisions deal with As we reported in February 2008, following the second ECJ how Article 7(2) should be interpreted. The key post-Directive ECJ reference in the long-running case of Boehringer Ingelheim KG v jurisprudence is contained in the case of Bristol-Myers Squibb v Swingward Ltd (“Boehringer 2”), the Court of Appeal indicated Paranova [1996] which sets out five conditions (“the BMS that it was minded to allow parallel importers of Conditions”), breach of which will trigger the proprietor’s right to pharmaceuticals to repackage freely (i.e. without a prohibition object to the further commercialisation of its products. on debranding or cobranding) but reserved its final judgment In the Austrian case, the ECJ was asked two questions: (1) pending the outcome of a related Austrian reference. That whether proof from the parallel importer that reliance on the reference queried whether trade mark proprietors could exert trade mark would contribute to an artificial partitioning of the any control over the manner of the new packaging for example market must be furnished not only as regards the repackaging by way of a principle of only ‘minimum intervention’ being itself but also as regards the presentation of the new packaging allowed by importers and also what information the importers and whether the said presentation was to be measured against were required to furnish to manufacturers. The ECJ has now the principle of minimum intervention or (only) against whether it is such as to damage the reputation of the trade mark and its Wellcome is the proprietor of, inter alia, two Austrian word proprietor; and (2) whether the importer fulfils his duty of marks ZOVIRAX and the figurative word mark ZOVIRAX in the notification under the BMS conditions only if he informs the pharmaceutical products class. The marks are regularly used in proprietor of the trade mark also of the state of export and the Austria by GlaxoSmithKline Pharma GmbH with Wellcome’s precise reasoning for the repackaging.
consent. Paranova is a pharmaceutical product wholesaler. InAustria it markets pharmaceutical products bearing the mark ZOVIRAX which Wellcome (or third parties with Wellcome’s In answer to the first question, the ECJ confirmed that the BMS consent), have put on the market in the EEA. Paranova markets Condition that the repackaging be ‘necessary’ for its further those products in new packaging, using a blue band design marketing in the importing state is directed only at the fact of (common to all its products) and the words ‘Repackaged and repackaging and not the manner or style of it, as was confirmed by imported by Paranova’, written in bold type and block capitals.
the ECJ in Boehringer 2. The presentation of any new packaging, Before the Austrian Courts Glaxo objected to (1) the references therefore, did not need to be assessed against the criterion of the to Paranova being in bigger and clearer type and/or placed in a minimum possible adverse affect on the trade mark rights. The more prominent position to the references to the manufacturer; presentation of the packaging should be assessed only against the (2) the coloured bands on the edge of the repackaging; and (3) condition that it should not be such as to be liable to damage the the fact Paranova had not informed Wellcome of the impending reputation of the trade mark or its proprietor.
marketing, the state of export nor the precise reasons whyrepackaging was necessary. The Vienna Higher Regional Court Dealing with the second question, the ECJ held that in exceptional granted Wellcome’s application in relation to the first and third cases, it may be necessary for an importer to disclose the Member State of export where the absence of that information wouldprevent the trade mark proprietor from evaluating the need torepackage. It should, however, be borne in mind that “where it is established that the details furnished are used by the proprietor to Article 7(1) of Directive 89/104 provides for the exhaustion of a enable him to detect weaknesses in his sales organisation and thus proprietor’s trade mark rights once goods have been put on the combat parallel trade in his products, the importer may seek market in the EEA by the proprietor (or with his consent).
protection under EU competition provisions”.
However, under Article 7(2), exhaustion will not apply wherethere exist legitimate reasons for the proprietor to oppose further LONDON GUANGZHOU HONG KONG PARIS PIRAEUS SHANGHAI SINGAPORE Associated with: Elias Paraskevas Attorneys at Law, Athens; McGregor & Partners SCA, Bucharest; Al Sarraf & Al Ruwayeh, Kuwait; Barbé Carpentier Thibault Groener, Paris www.shlegal.comStephenson HarwoodOne, St Paul’s Churchyard, London EC4M 8SHTelephone +44 (0)20 7329 4422Fax +44 (0)20 7329 7100 It is clear that the reconvened English Court of Appeal in Boehringer will now finalise its judgment in favour of theimporters- permitting cobranding and debranding of repackaged parallel imports. In future, pharmaceutical manufacturers will have to confine their objections to repackaging which harms the reputation of the trade mark or its proprietor and will have totread carefully when asking for details of countries of export orthe precise manner of repackaging in order to avoid an attack byimporters on the grounds of competition law. As to whenrepackaging causes harm to the reputation of the trade mark orits proprietor, the English Courts have ruled out the possibility of harm from cobranding or debranding despite the ECJ’s indicationthat these practices are inherently prejudicial. Other European Courts may take a different view. This means there is no guarantee of a consistent approach to repackaging across Europe.
Historically, the UK has been a net importer of parallel imports.
However, with the current weakness in the pound as comparedto the Euro, it is likely that the UK will be a net exporter ofparallel imports, which means that future cases in relation tore-packaging and in particular to de-branding and co-branding,are more likely to be heard in continental courts, which maytake a less favourable line in relation to those issues than theUK Court of Appeal. The contact details and information you provide will be held on a database and may be shared with other Stephenson Harwood offices and associated law firms. Under no circumstances will your details be made available to other organisations. If you would like to be removed from our mailing list please notify our marketingdepartment in writing.
Information contained in this document should not be applied to any particular set of facts without seeking legal advice.
The fibre used to produce this paper is sourced from sustainable plantation wood and is elemental chlorine free.
Law Watch – February 2009 Stephenson Harwood

Source: http://www.shlegal.com/Asp/uploadedFiles/File/Newsletters/2009_newsletters/02_09/9432-A%20LW%20IP.pdf

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