Trade mark proprietor cannot oppose trade of repackaged medicine when the medicine cannot be marketed in the same outer packaging in the importing State

TRADE MARK LAW

Trade mark proprietor cannot oppose the trade of a repackaged medicine when a) the medicine cannot be marketed in the importing State in the same outer packaging as in the exporting State and b) when the importer has demonstrated that the imported product can only be marketed in a limited part of the importing State’s market. The referring court has to affirm this.

"In these circumstances, the answer to the questions referred is that Article 7(2) of Directive 2008/95 must be interpreted as meaning that a trade mark proprietor may object to the continued marketing of a medicinal product by a parallel importer, where that importer has repackaged that medicinal product in a new, outer packaging and reaffixed the trade mark, where, first, the medicinal product at issue can be marketed in the importing State party to the EEA Agreement in the same packaging as that in which it is marketed in the exporting State party to the EEA Agreement and, second, the importer has not demonstrated that the imported product can only be marketed in a limited part of the importing State’s market, and those are matters which it is for the referring court to determine."

IPPT20161110, CJEU, Ferring v Orifarm
 

C-297/15 - ECLI:EU:C:2016:857