Austrian Supreme Court on the allocation of the burden of proof in the case of trade mark exhaustion in a selective distribution system

1. A submission of evidence by the trade mark proprietor that the trade mark goods were first put on the market outside the EEA does not shift the burden of proof due to renunciation.

2. The dispatch of trade mark goods by the trade mark proprietor in accordance with Incoterms CIP (Carriage and Insurance Paid to) or DAP (Delivered At Place) to a foreign EEA country does not result in trade mark goods being placed on the market in the EEA.

3. The procedural protection of trade secrets under Section 26h öUWG (cf. Art. 9 GeschGeh-RL) is limited to proceedings which concern the unlawful acquisition, use or disclosure of a trade secret pursuant to Sections 26c et seq. öUWG [cf. Art. 12 et seq. GeschGeh-RL].

Constantin Kletzer has commented on this decision of the Supreme Court on 4 Ob 52/23k in GRUR-Prax 2024, 09

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