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sent in small consignments'. As is indicated below, small consignments are not
exempted under the Customs Regulation.
(c) Parallel imports
Recital (6) of the Customs Regulation explains goods subject to illegal parallel
trade, namely goods that have been manufactured with the consent of the right
holder but placed on the market for the first time in the European Economic
Area without his consent, and overruns, namely goods that are manufactured by
a person duly authorised by a right holder to manufacture a certain quantity of
goods, in excess of the quantities agreed between that person and the right
holder, 'are manufactured as genuine goods and it is therefore not appropriate
that customs authorities focus their efforts on such goods'.
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Thus Art 2(5) provides that 'this Regulation shall not apply to goods that have
been manufactured with the consent of the right-holder or to goods manufac-
tured, by a person duly authorised by a right-holder to manufacture a certain
quantity of goods, in excess of the quantities agreed between that person and
the right-holder'.
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Article 3(1) of the Customs Regulation provides that it shall not apply to
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goods bearing a trademark with the consent of the holder of that trademark or to goods
bearing a protected designation of origin or a protected geographical indication .. and
which have been manufactured with the consent of the right-holder but are placed in
one of the situations referred to in Article 1(1) without the latter's consent.
Article 3(1) also provides that the Customs Regulation shall similarly not apply
to goods referred to in the first subparagraph and which have been manufac-
tured or are protected by another intellectual property right referred to in Art
2(1) under conditions other than those agreed with the right-holder.
The principle of exhaustion states that once right holders, or any authorised
party, have sold a genuine product they cannot prohibit the subsequent resale of
that product in another country since their rights in respect of that market have
been exhausted by the act of selling the product. In most countries the legal rule
is that the rights of a trade mark proprietor are exhausted by the first sale of a
legitimately trade-marked product. An exception to this principle of universal
exhaustion exists in Art 7 of the EU Trade Marks Directive,
79
which provides
that a trade mark 'shall not entitle the proprietor to prohibit its use in relation to
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79
Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the
laws of the Member States relating to trade marks (OJ L 299, 8.11.2008).
