Roche Products Ltd & Anor v Kent Pharmaceuticals Ltd [2006] EWCA Civ 1775 (20 December 2006)

Roche Products Ltd & Anor v Kent Pharmaceuticals Ltd [2006] EWCA Civ 1775 (20 December 2006)

The evidence adduced by Kent was insufficient to establish that the CE mark is generally understood by both parallel importers and trademark proprietors as consent to place goods on the EU market under Article 7. The CE mark's regulatory purpose does not equate to trademark proprietor consent, and no triable issue was raised to defeat summary judgment.

Citation
[2006] EWCA Civ 1775
Parties
Claimant/respondent: Roche Products Limited; Claimant/respondent: Roche Diagnostics GmbH; Defendant/appellant: Kent Pharmaceuticals Limited
Jurisdiction
England and Wales
Judgment Date
20 December 2006
Procedural Posture
Appeal / Appeal From Summary Judgment in Trademark Infringement Action
Outcome
Appeal dismissed
Legal Topics
Trademark Infringement, Parallel Importation, Consent Under Article 7 Directive 89/104/eec, Summary Judgment, Interpretation of CE Mark
Intellectual Property Law Commercial Law Trademark Infringement Parallel Importation Consent Under Article 7 Directive 89/104/eec Summary Judgment Interpretation of CE Mark

Case Brief

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Parties

Roche Products Limited

Claimant/respondent

Roche Diagnostics GmbH

Claimant/respondent

Kent Pharmaceuticals Limited

Defendant/appellant

Procedural Posture

Appeal / Appeal From Summary Judgment in Trademark Infringement Action

Legal Issues

  1. 1 Whether affixing a CE mark constitutes consent by the trademark proprietor to placing goods on the EU market under Article 7 of Directive 89/104/EEC
  2. 2 Whether summary judgment was appropriate in light of the evidence on consent

Ratio Decidendi

The evidence adduced by Kent was insufficient to establish that the CE mark is generally understood by both parallel importers and trademark proprietors as consent to place goods on the EU market under Article 7. The CE mark's regulatory purpose does not equate to trademark proprietor consent, and no triable issue was raised to defeat summary judgment.

Court Disposition

Appeal dismissed

Orders

  • Summary judgment for the claimants (Roche) upheld
  • No reference to the ECJ