Joop GMBH v M & S Toiletries Ltd [2000] ScotCS 92 (4 April 2000)

Joop GMBH v M & S Toiletries Ltd [2000] ScotCS 92 (4 April 2000)

The defenders' averments that the pursuers impliedly consented to the importation of the goods into the EEA, based solely on the absence of additional packaging or labelling restrictions, are irrelevant in law. The contractual arrangements clearly restricted sales to outside the EEA, and the law requires actual knowledge and approval for consent under Article 7(1). Mere failure to take further steps does not amount to implied consent. The defenders' core defence is therefore irrelevant and will not be remitted to probation.

Citation
[2000] ScotCS 92
Parties
Pursuer: Joop! GmbH; Defender: M & S Toiletries Limited
Jurisdiction
Scotland
Judgment Date
04 April 2000
Procedural Posture
Intellectual Property Infringement (trade Mark) / Procedure Roll (pleadings Debate)
Outcome
Defenders' averments of implied consent held irrelevant; case to proceed for further consideration of remedies and remaining issues.
Legal Topics
Trade Mark Exhaustion, Parallel Imports, Consent Under Trade Mark Law, Interpretation of Trade Marks Act 1994 and Directive 89/104/eec
Intellectual Property European Union Law Commercial Law Trade Mark Exhaustion Parallel Imports Consent Under Trade Mark Law Interpretation of Trade Marks Act 1994 and Directive 89/104/eec

Case Brief

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Parties

Joop! GmbH

Pursuer

M & S Toiletries Limited

Defender

Procedural Posture

Intellectual Property Infringement (trade Mark) / Procedure Roll (pleadings Debate)

Legal Issues

  1. 1 Whether the pursuers consented (expressly or impliedly) to the importation and marketing of the goods in the EEA under Article 7(1) of Directive 89/104/EEC and section 12(1) of the Trade Marks Act 1994
  2. 2 Whether the defenders' averments of implied consent are relevant in law

Ratio Decidendi

The defenders' averments that the pursuers impliedly consented to the importation of the goods into the EEA, based solely on the absence of additional packaging or labelling restrictions, are irrelevant in law. The contractual arrangements clearly restricted sales to outside the EEA, and the law requires actual knowledge and approval for consent under Article 7(1). Mere failure to take further steps does not amount to implied consent. The defenders' core defence is therefore irrelevant and will not be remitted to probation.

Court Disposition

Defenders' averments of implied consent held irrelevant; case to proceed for further consideration of remedies and remaining issues.

Orders

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