Boehringer Ingelheim and Others (Free movement of goods) [2006] EUECJ C-348/04 (06 April 2006)

Boehringer Ingelheim and Others (Free movement of goods) [2006] EUECJ C-348/04 (06 April 2006)

The five Bristol-Myers Squibb conditions do not apply to overstickered pharmaceutical products where there is no risk to the guarantee of origin; the necessity requirement applies only to the fact of reboxing, not its manner or style; the fourth condition is not limited to defective, poor quality, or untidy packaging but extends to any serious risk of damage to the trade mark's reputation, which is a question of fact for the national court; failure to give notice under the fifth condition warrants a proportionate and effective sanction, but not one as severe as for breach of substantive conditions; the burden of proof for the five conditions generally lies with the parallel importer,...

Citation
[2006] EUECJ C-348/04
Parties
Claimant: Boehringer Ingelheim KG; Claimant: Boehringer Ingelheim Pharma GmbH & Co. KG; Claimant: Glaxo Group Ltd; Claimant: Smithkline Beecham plc; Claimant: Beecham Group plc; Claimant: Smithkline and French Laboratories Ltd; Claimant: Eli Lilly and Co.; Claimant: The Wellcome Foundation Ltd; Defendant: Swingward Ltd; Defendant: Dowelhurst Ltd
Jurisdiction
European Union
Judgment Date
06 April 2006
Procedural Posture
Reference for Preliminary Ruling / Opinion of Advocate General
Outcome
Opinion delivered; guidance provided to national court on interpretation of EU law.
Legal Topics
Trade Marks, Parallel Imports, Repackaging of Pharmaceuticals, Free Movement of Goods, Exhaustion of Rights, Burden of Proof, Remedies for Infringement
European Union Law Intellectual Property Law Trade Marks Parallel Imports Repackaging of Pharmaceuticals Free Movement of Goods Exhaustion of Rights Burden of Proof +1 more

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Parties

Boehringer Ingelheim KG

Claimant

Boehringer Ingelheim Pharma GmbH & Co. KG

Claimant

Glaxo Group Ltd

Claimant

Smithkline Beecham plc

Claimant

Beecham Group plc

Claimant

Smithkline and French Laboratories Ltd

Claimant

Eli Lilly and Co.

Claimant

The Wellcome Foundation Ltd

Claimant

Swingward Ltd

Defendant

Dowelhurst Ltd

Defendant

Procedural Posture

Reference for Preliminary Ruling / Opinion of Advocate General

Legal Issues

  1. 1 Whether the five conditions set out in Bristol-Myers Squibb apply to overstickered pharmaceutical products as well as reboxed products
  2. 2 Whether the necessity requirement applies to the fact of reboxing or also to the manner and style of reboxing
  3. 3 Scope of the fourth Bristol-Myers Squibb condition regarding damage to trade mark reputation

Ratio Decidendi

The five Bristol-Myers Squibb conditions do not apply to overstickered pharmaceutical products where there is no risk to the guarantee of origin; the necessity requirement applies only to the fact of reboxing, not its manner or style; the fourth condition is not limited to defective, poor quality, or untidy packaging but extends to any serious risk of damage to the trade mark's reputation, which is a question of fact for the national court; failure to give notice under the fifth condition warrants a proportionate and effective sanction, but not one as severe as for breach of substantive conditions; the burden of proof for the five conditions generally lies with the parallel importer,...

Court Disposition

Opinion delivered; guidance provided to national court on interpretation of EU law.