21.2.2009
EN
Official Journal of the European Union
C 44/2
Judgment of the Court (Second Chamber) of 22 December 2008 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — The Wellcome Foundation Ltd v Paranova Pharmazeutika Handels GmbH
(Case C-276/05) (1)
(Trade marks - Pharmaceutical products - Repackaging - Parallel imports - Substantial change in appearance of the packaging - Obligation of prior notice)
(2009/C 44/02)
Language of the case: German
Referring court
Oberster Gerichtshof
Parties to the main proceedings
Applicant: The Wellcome Foundation Ltd
Defendant: Paranova Pharmazeutika Handels GmbH
Re:
Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 7 of Directive 89/104/EEC: First Council Directive of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Repackaging of a pharmaceutical product imported in parallel — Substantial change in the appearance of the packaging — Extent of the obligation of prior notification
Operative part of the judgment
1.
Article 7(2) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, is to be interpreted as meaning that, where it is established that repackaging of the pharmaceutical product is necessary for further marketing in the Member State of importation, the presentation of the packaging should be assessed only against the condition that it should not be such as to be liable to damage the reputation of the trade mark or that of its proprietor.
2.
Article 7(2) of Directive 89/104, as amended by the Agreement on the European Economic Area of 2 May 1992, is to be interpreted as meaning that it is for the parallel importer to furnish to the proprietor of the trade mark the information which is necessary and sufficient to enable the latter to determine whether the repackaging of the product under that trade mark is necessary in order to market it in the Member State of importation.
(1) OJ C 217, 3.9.2005.
Full & Egal Universal Law Academy