Free Movement

2012

 

IPPT20120712, CJEU, Hit Larix v Bundesminister

Prohibition of advertising games of chance permitted if other Member State does not provide equivalent protection of gamblers

 

IPPT20120703, CJEU, UsedSoft v Oracle

Exhaustion of the distribution right with regard to a copy of a computer program that has been licensed for an unlimited period in return for payment of a fee. Second and subsequent acquirer of a copy of a computer program for which the distribution right is exhausted is a lawful acquirer of copy of computer program

 

2011

 

IPPT20111020, CJEU, Greenstar v Kanzi

No exhaustion of plant variety rights in case of breach of license conditions or restrictions which relate directly to the essential features of the plant variety right concerned. Awareness or deemed to be aware of the conditions of the license of no significance restrictions

 

IPPT20110728, CJEU, Orifarm v Merck

Trademark Law - free movement of goods: Indication of market authorisation holder responsible for repacking instead of actual repackager allowed

 

2010

 

IPPT20100603, CJEU, Sporting Exchange v Sporttotalisator
Prohibition on legitimate foreign operator from offering games of chance via the internet: therefore, the answer to the first question is that Article 49 EC must be interpreted as not precluding legislation of a Member State, such as the legislation at issue in the main proceedings, under which exclusive rights to organise and promote games of chance are conferred on a single operator, and which prohibits any other operator, including an operator established in another Member State, from offering via the internet services within the scope of that regime in the territory of the first Member State. Obligation of transparancy applicable to granting of license

 

IPPT20100603, CJEU, Ladbrokes v Sporttotalisator
Exclusive license limiting freedom to provide services – for national court to determine. Blocking access to internet site for Dutch residents is an indispensible element. ational court not required to determine compatability of implementing measure in each case. Prohibition on legitimate foreign operator from offering games of chance via the internet

 

IPPT20100316, CJEU, Olympique Lyonnais v Olivier Bernard and Newcastle

Rules requiring a 'joueur espoir' are a restriction on freedom of movement for workers: Rules according to which a ‘joueur espoir’, at the end of his training period, is required, under pain of being sued for damages, to sign a professional contract with the club which trained him are likely to discourage that player from exercising his right of free movement.

 

2008

 

IPPT20081222, ECJ, The Wellcome Foundation v Paranova - Zovirax

Where repackaging is necessary the packaging should be assessed only against the condition that it should not be liable to damage the reputation. It is for the parallel importer to furnish the proprietor of the trade mark with information to enable the latter to determine whether the repackaging is necessary. This information may not be used to enable the trade mark proprietor to detect weaknesses in his sales organisation.

 

IPPT20080214, ECJ, Dynamic Medien v Avides Media

Age-limit label: Free movement of goods does not preclude national rules, which prohibit the sale and transfer by mail order of image storage media which do not bear a label from that authority or that body indicating the age from which they may be viewed.

 

2007

 

IPPT20071213, ECJ, UPC cs v Belgium State

Must-carry obligation acceptable when pursues an aim in the general interest, is not disproportionate, and must be subject to a transparent procedure based on objective non-discriminatory criteria known in advance.

 

IPPT20071115, ECJ, Commission v Germany (Garlic extract powder capsule)

Failure of a Member State to fulfil its obligations – Article 28 EC and Article 30 EC – Directive 2001/83/EC – Garlic preparation in capsule form – Preparation legally marketed as a food supplement in a number of Member States – Preparation classified as a medicinal product in the Member State of importation – Definition of ‘medicinal product’ – Obstacle – Justification – Public health – Proportionality.

 

IPPT20071108, ECJ, Ludwigs Apotheke v Juers Pharma

Free movement of goods – Articles 28 EC and 30 EC – Articles 11 and 13 of the EEA Agreement – Imported medicinal products not authorised in the importing State – Prohibition of advertising – Directive 2001/83/EC.

 

IPPT20071108, ECJ, Gintec

Directives 2001/83/EC and 92/28/EEC – National leg-islation prohibiting advertising of medicinal products by way of statements of third parties or prize draws – Use of generally positive results of a consumer survey and a monthly prize draw to win a pack of the product.

 

IPPT20070605, ECJ, Rosengren

A national provision under which private individuals are prohibited from importing alcoholic beverages, must be assessed in the light of Article 28 EC and not in the light of Article 31 EC - Measure is a quantitative restriction on imports - Measure is unsuitable and not proportionate.

 

IPPT20070426, ECJ, Boehringer Ingelheim v Swingward II

Repackaging of the product bearing the trade mark: the repackaging of the pharmaceutical product be necessary for its further commercialisation, as one of the conditions is directed solely at the fact of repackaging and not at the manner and style of the repackaging.

 

IPPT20070306, ECJ, Placanica

Freedom of establishment – Freedom to provide ser-vices – Interpretation of Articles 43 EC and 49 EC – Games of chance – Collection of bets on sporting events – Licensing requirement – Exclusion of certain operators by reason of their type of corporate form – Requirement of police authorisation – Criminal penalties.

 

2006

 

IPPT20060718, ECJ, Meca-Medina and Majcen v Commission

Committee concerning doping control – Incompatibility with the Community rules on competition and freedom to provide services.

 

IPPT20060309, ECJ, Matratzen Concord v Hukla Germany

Trade mark consisting of a term borrowed from the language of another Member State in which it is devoid of distinctive character and/or descriptive of the goods in respect of which the trade mark was registered.

 

2005

 

IPPT20050602, ECJ, Mediakabel

A service comes within the concept of ‘television broadcasting’ if it consists of the initial transmission of television programmes intended for reception by an indeterminate number of potential television viewers, to whom the same images are transmitted simultaneously.

 

2004

 

IPPT20040401, ECJ, Kohlpharma

Free movement of goods – Medicinal products – Importation – Application for marketing authorisation under a simplified procedure – Common origin

 

2003

 

IPPT20031106, ECJ, Gambelli

National legislation which prohibits on pain of criminal penalties the pursuit of the activities of collecting, taking, booking and forwarding offers of bets constitutes a restriction on the freedom of establishment and the freedom to provide services.

 

IPPT20031023, ECJ, Rioglass

Article 28 EC precludes the implementation of procedures for detention by the customs authorities of goods lawfully manufactured in a Member state and intended to be placed on the market in a non-member country.

 

IPPT20030508, ECJ, Paranova

The mere fact that a marketing authorisation of ref-erence was withdrawn at the request of its holder should not entail the automatic withdrawal of the parallel import licence issued for the medicinal product in question, unless there is in fact a risk to the health of humans.

 

2002

 

IPPT20020910, ECJ, Ferring

Cessation of the validity of a parallel import licence following the withdrawal of the marketing authorisation of reference constitutes a restriction on the free movement of goods. A risk to public health arising from the coexistence of the two versions may justify restrictions on the importation of the old version.

 

IPPT20020423, ECJ, Boehringer Ingelheim v Swingard

Article 7(2) of the Directive must be interpreted as meaning that a trade mark proprietor may rely on its trade mark rights in order to prevent a parallel importer from repackaging pharmaceutical products unless the exercise of those rights contributes to artificial partitioning of the markets between Member States. 

 

IPPT20020423, ECJ, MSD v Paranova

Replacement packaging of pharmaceutical products is objectively necessary if, without such repackaging, effective access to the market concerned must be considered to be hindered as the result of strong resistance from a significant proportion of consumers to relabelled pharmaceutical products.

 

1996

 

IPPT19960711, ECJ, Bristol Meyers Squibb

Interpretation of the principle of exhaustion in line with earlier case law of the ECJ -repackaging of pharmaceuticals

 

IPPT19960711, ECJ, MPA Pharma v Rhône-Poulenc

Interpretation of the principle of exhaustion in line with earlier case law of the ECJ - repackaging of pharmaceuticals

 

1995

 

IPPT19951215, ECJ, Bosman

Article 48 of the EEC Treaty precludes the application of rules laid down by sporting associations, under which a professional footballer who is a national of one Member State may not, on the expiry of his contract with a club, be employed by a club of
another Member State unless the latter club has paid to the former club a transfer, training or development fee.

 

1994

 

IPPT19940622, ECJ, Ideal Standard

Free movement of goods precludes the use of trade-mark rights in order to prevent the free movement of a product bearing a trade mark whose use is under unitary control.

 

IPPT19940202, ECJ, Clinique

Articles 30 and 36 of the Treaty and Article 6(2) of the Directive on cosmetic products must be interpreted as precluding a national measure which prohibits the importation and marketing of a product classified and presented as a cosmetic on the ground that the product bears the name "Clinique".

 

1993

 

IPPT19930518, ECJ, Yves Rocher
Price comparison: Prohibiting eye catching advertising of new price for imported goods, referring to a higher price in a previous catalogue,  precluded by free movement of goods

 

1992

 

IPPT19921027, ECJ, Generics
Compulsory License: Free movement of goods precludes regime for compulsory licenses refusing the licensee the au-thorization to import the patented product from non-member countries where the proprietor of the patent manufactures the product within the national territory, and in order to grant such authorization where the proprietor of the patent works his patent by importing the product from other Member States of the Community.

 

IPPT19920116, ECJ, New Nissan
Advertising parallel imported cars as 'new' is not misleading

 

1990

 

IPPT19900307, ECJ, GB-INNO-BM
Prohibited application of Luxembourg advertising law  on legitimate Belgian advertisement

 

1989

 

IPPT19890124, ECJ, EMI Electrola v Patricia
Difference in protection period under national law: Articles 30 and 36 of the EEC Treaty do not preclude the application of a Member State' s legislation which allows a producer of sound recordings in that Member State to rely on the exclusive rights to reproduce and distribute certain musical works of which he is the owner in order to prohibit the sale, in the territory of that Member State, of sound recordings of the same musical works when those recordings are imported from another Member State in which they were lawfully marketed without the consent of the aforesaid owner or his licensee and in which the producer of those recordings had enjoyed protection which has in the mean time expired

 

1988

 

IPPT19880517, ECJ, Warner Brothers
Copyright and free movement of goods: No exhaustion: National right to make the hiring-out of video-cassettes subject to permission, not exhasuted when the video-cassettes have - with the consent of copyright holder - been put into circulation in another Member State whose legislation enables the author to control the initial sale, without giving him the right to prohibit hiring-out

 

1985

 

IPPT19850709, ECJ, Pharmon

Free movement of goods and exhaustion: patent proprietor has the right to prevent the marketing of a product which has been manufactured in another member state by the holder of a compulsory licence

 

1983

 

IPPT19830317, ECJ, Berliner Kindl Weisse Bier
National rules prohibiting the marketing of beer which do not comply with conditions on acidity.

 

1982

 

IPPT19820914, ECJ, Keurkoop v Nancy Kean
The proprietor of a national design right may oppose the importation of products from another member state which are identical in appearance to the design which has been filed, provided that (i) the products in question have not been put into circulation in the other member state by, or with the consent of, (ii) the proprietor of the right or a person legally or economically dependent on him, that as between the natural or legal persons in question there is no kind of agreement or concerted practice in restraint of competition and finally (iii) that the respective rights of the proprietors of the right to the design in the various member states were created independently of one another. 

 

IPPT19820608, ECJ, Maize Seed
Plant variety rights: open, exclusive license  is not incompatible with prohibition on cartels, but absolute territorial protection of licensee is.

  

IPPT19820302, ECJ, IDG v Beele
Free movement of goods and passing off: Injunction against product which for no compelling reason is almost identical and thereby needlessly causes confusion not prevented by rules on the free movement of goods as long as provision protects consumers and stimulates fair trade 

 

IPPT19820209, ECJ, Polydor v Harlequin

The enforcement of copyrights against the importation and marketing of gramophone records in the United Kingdom lawfully manufactured and placed on the market in the Portuguese Republic by licensees does not constitute a restriction on trade: does not constitute a means of arbitrary discrimination or a disguised restriction on trade between the Community and Portugal.

 

1981

 

IPPT19811203, ECJ, Pfizer v Eurium Pharm

Trade mark lawfully affixed to a product in a member state - repackaging by a third party and importation into another member state. 

 

IPPT19810714, ECJ, Merck v Stephar
Free movement of goods : proprietor of a patent for a medicinal preparation who sells the preparation in a member state where no patent protection exists, cannot prevent the marketing in the import into a member state, where patent protection exists

  

IPPT19810122, ECJ, Dansk Supermarked v Imerco
Judicial authorities may not prohibit, on the basis of a copyright or of a trade mark, the marketing of a product if that product has been lawfully marketed on the territory of another member state by the proprietor of such rights or with his consent. Mere import cannot be classiefied as unfair commercial practice, either  by law or by agreement

 

IPPT19810120, ECJ, Membran & K-Tel v GEMA

Exhaustion: Neither the copyright owner or his licensee, nor a copyright management society acting in the owner's or licensee's name, may rely on the exclusive exploitation right conferred by copyright to prevent or restrict the importation of sound recordings which have been lawfully marketed in another member state by the owner himself or with his consent

 

1979 

 

IPPT19790220, ECJ, Cassis de Dijon
Measures having equivalent effect to quantitative restrictions on imports also include legislation fixing a minimum alcohol content for alcoholic beverages, that have been lawfully produced and marketed in anonther member state

 

1978

 

IPPT19781010, ECJ, Centrafarm v American Home Products

The proprietor of a trade-mark is justified in preventing a product from being marketed by a third party even if previously that product has been lawfully marketed in another member state under another mark held in the latter state by the same proprietor.

 

IPPT19780523, ECJ, Hoffman-La Roche v Centrafarm

Trade-mark proprietor can prevent repackaging, unless (i) that contributes to the artificial partitioning of the markets between member states, (ii) the repackaging cannot adversely affect the original condition of the product, (iii) the proprietor receives prior notice, and (iv) it is stated on the new packaging by whom the product has been repackaged.

 

1976

 

IPPT19766022, ECJ, Terrapin v Terranova
Free movement of goods: Import of products of an undertaking in another member state can be prohibited by virtue of a right to a trademark and a right to a commercial name, provided that there are no agreements restricting competition and no legal or economic ties between the undertakings exist. 

 

IPPT19760615, ECJ, EMI v CBS
Trademark owner can exercise trademark rights against products bearing the same mark, which is owned in a third country, provided that the exercise is not the result of an agreement or concerted practice to isolate or partition the common market.

 

IPPT19765020, ECJ, De Peijper
Free movement of medicinal products: rules of practices which result in imports being channelled in such a way that only certain traders can effect these imports  constitute a maesure having equivalent effect to a quantative restriction  

 

1974

 

IPPT19741031, ECJ, Centrafarm v Sterling Drug
Exercising patent rights to prohibit sale of a product marketed in another member state with the panteee's consent  is incompatible with the free movement of goods.

 

IPPT19741031, ECJ, Centrafarm v Winthrop
Exercising trademark rights to prohibit sale of a product marketed in another member state with the trademark owner's consent  is incompatible with the free movement of goods.  

 

IPPT19740711, ECJ, Dassonville
All trading rules enacted by member states which are capable of hindering, directly or indirectly, ac-tually or potentially, intra-community trade are to be considered as measures having an effect equiva-lent to quantitative restrictions.

 

1971

 

IPPT19711125, ECJ, Beguellin
Exclusive dealing agreement and parallel import: just the fact that parallel imports occur, does not lead to unfair competition

 

IPPT19710608, ECJ, Deutsche Grammophon Gesellschaft v Metro
The exercise of an exclusive right to prevent the marketing of products distributed with the consent of the holder of the right in another member state is in conflict with free movement of products. Mere exercise of an exclusive right not sufficient to constitute a dominant position; the power to im-pede the maintenance of effective competition over a considerable part of the relevant market also require. Difference in price may be decisive factor to determine abuse

 

IPPT19710218, ECJ, Sirena
Prohibition on cartels is applicable to exercising a trademark right to distort import from other member states when the trademark or trademark license is aquired by means of an agreement. A trademark as such does not constitute a domi-nant position; also necessary that the proprietor should have power to impede the maintenance of effective competition over a con-siderable part of the relevant market. Price difference may be a determining factor to disclose abuse

 

1968

 

IPPT19680229, ECJ, Parke Davis
Exercising Dutch patent possible against import products from Italy, where (at the time) no patent registration was possible - Prohibition on cartels does not apply to mere existence or exercise of right, except in case of an agreementor concerted practice - Difference in price does not necessarily constitute abuse of a dominant position. 

 

1966

 

IPPT19660713, ECJ, Grundig v Consten
Exercising trademark rights in order to set obstacles for parallel imports, is not in accordance with the community rules on competition - Agreement concerning national registration GINT trademark, which result in unlawful obstacles for parallel imports, is prohibited under the EC Treaty.