Zino Davidoff SA v M & S Toiletries Ltd [2000] ScotCS 98 (4 April 2000)

Zino Davidoff SA v M & S Toiletries Ltd [2000] ScotCS 98 (4 April 2000)

The defenders' averments regarding implied consent, based on absence of packaging notices or further restrictions, are irrelevant given the clear contractual intention to restrict sales to the designated territory and the absence of specific averments regarding the content of German law. Consent under Article 7(1) cannot be inferred merely from failure to block every avenue of importation; it requires knowledge and approval by the proprietor. The pursuers' attack on the relevance of the defenders' case succeeds.

Citation
[2000] ScotCS 98
Parties
Pursuer: Zino Davidoff SA; Defender: M & S Toiletries Limited
Jurisdiction
Scotland
Judgment Date
04 April 2000
Procedural Posture
Commercial Intellectual Property Dispute / Procedure Roll (pleadings Debate)
Outcome
Defenders' averments regarding implied consent are held irrelevant and not remitted to probation; case put out By Order for further procedure regarding remedies.
Legal Topics
Trade Mark Exhaustion, Parallel Imports, Consent Under Trade Mark Law
Intellectual Property Commercial Law European Law Trade Mark Exhaustion Parallel Imports Consent Under Trade Mark Law

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Zino Davidoff SA

Pursuer

M & S Toiletries Limited

Defender

Procedural Posture

Commercial Intellectual Property Dispute / Procedure Roll (pleadings Debate)

Legal Issues

  1. 1 Whether the pursuers consented to the placing of goods on the market within the EEA under Article 7(1) of the Trade Mark Directive and section 12(1) of the Trade Marks Act 1994
  2. 2 Whether implied consent can be inferred from the absence of restrictions in the supply chain
  3. 3 Relevance of defenders' averments regarding consent

Ratio Decidendi

The defenders' averments regarding implied consent, based on absence of packaging notices or further restrictions, are irrelevant given the clear contractual intention to restrict sales to the designated territory and the absence of specific averments regarding the content of German law. Consent under Article 7(1) cannot be inferred merely from failure to block every avenue of importation; it requires knowledge and approval by the proprietor. The pursuers' attack on the relevance of the defenders' case succeeds.

Court Disposition

Defenders' averments regarding implied consent are held irrelevant and not remitted to probation; case put out By Order for further procedure regarding remedies.

Orders

  • Averments in the last two sentences of Answer 5 and last three sentences of Answer 6 are not remitted to probation.
  • Case put out By Order for consideration of further procedure.