Boehringer Ingelheim & Ors (Free movement of goods) [2007] EUECJ C-348/04 (26 April 2007)

Boehringer Ingelheim & Ors (Free movement of goods) [2007] EUECJ C-348/04 (26 April 2007)

Trade mark proprietors may legitimately oppose further commercialisation of pharmaceutical products imported in original packaging with additional external labels unless five conditions are fulfilled; the necessity condition applies only to the fact of repackaging, not its manner or style; presentation must not damage reputation beyond defective, poor quality, or untidy packaging; burden of proof for compliance lies with parallel importers; failure to give prior notice constitutes infringement, subject to proportionate sanctions and financial remedies as for spurious goods.

Citation
[2007] EUECJ C-348/04
Parties
Claimant: Boehringer Ingelheim KG, Boehringer Ingelheim Pharma GmbH & Co. KG, Glaxo Group Ltd, The Wellcome Foundation Ltd, SmithKline Beecham plc, Beecham Group plc, SmithKline and French Laboratories Ltd, Eli Lilly and Co.; Respondent: Swingward Ltd, Dowelhurst Ltd
Jurisdiction
European Union
Judgment Date
26 April 2007
Procedural Posture
Reference for Preliminary Ruling / Court of Justice of the European Union Preliminary Ruling
Outcome
Preliminary ruling issued; national court to apply interpretation and determine remedies.
Legal Topics
Trade Marks, Parallel Importation, Pharmaceuticals, Repackaging, Free Movement of Goods
Intellectual Property European Union Law Trade Marks Parallel Importation Pharmaceuticals Repackaging Free Movement of Goods

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Parties

Boehringer Ingelheim KG, Boehringer Ingelheim Pharma GmbH & Co. KG, Glaxo Group Ltd, The Wellcome Foundation Ltd, SmithKline Beecham plc, Beecham Group plc, SmithKline and French Laboratories Ltd, Eli Lilly and Co.

Claimant

Swingward Ltd, Dowelhurst Ltd

Respondent

Procedural Posture

Reference for Preliminary Ruling / Court of Justice of the European Union Preliminary Ruling

Legal Issues

  1. 1 Interpretation of Article 7(2) of Directive 89/104/EEC regarding exhaustion of trade mark rights and legitimate reasons for opposition to further commercialisation
  2. 2 Conditions under which trade mark proprietors may oppose repackaging and relabelling by parallel importers
  3. 3 Burden of proof for compliance with conditions permitting further commercialisation

Ratio Decidendi

Trade mark proprietors may legitimately oppose further commercialisation of pharmaceutical products imported in original packaging with additional external labels unless five conditions are fulfilled; the necessity condition applies only to the fact of repackaging, not its manner or style; presentation must not damage reputation beyond defective, poor quality, or untidy packaging; burden of proof for compliance lies with parallel importers; failure to give prior notice constitutes infringement, subject to proportionate sanctions and financial remedies as for spurious goods.

Court Disposition

Preliminary ruling issued; national court to apply interpretation and determine remedies.

Orders

  • Trade mark proprietor may oppose further commercialisation unless five conditions are fulfilled.
  • Necessity condition applies only to fact of repackaging, not manner or style.