News for parallel importers and trademark owners.

The ECJ shed some more light on the parallel importation of pharmaceuticals: Ferring markets a medicinal product under the trade mark Klyx, of which it is the proprietor. Klyx is sold in inter alia in packets containing 1 or 10 pieces.

Orifarm purchased Klyx in Norway in packets of 10 and sold it on the Danish market, after having repackaged it in new packets of 1, upon which the mark Klyx is reaffixed.

It was already established that, where the trademark owner uses several different sizes of packaging in the state of origin, the fact that one of those sizes is also marketed in the importing State does not justify the conclusion that repackaging is unnecessary. Partitioning of the markets would exist if the importer were able to sell the product in only part of his market (see, by analogy, judgment of 11 July 1996, Bristol-Myers Squibb and Others, C‑427/93, C‑429/93 and C‑436/93, EU:C:1996:282, paragraph 54).

In the present case C-297/15, the ECJ now ruled that the parallel importer is not allowed to buy (cheaper) 10-piece-packs in Norway to sell the imported products after repackaging into 1-piece packs in Denmark, as there were 1-piece packs available in Norway, as well.

 

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