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goods which have been put on the market in the Community under that
trademark by the proprietor or with his consent'. This has been interpreted by
the ECJ to permit a trade mark owner to object to the importation of
trade-marked goods from outside the EU.
80
7.104
The issue of consent was addressed by the ECJ in
Zino Davidoff SA
v
A&G
Imports Ltd
,
81
which concerned the importation to the UK of Davidoff prod-
ucts which had originally been placed on the market in Singapore. Davidoff
denied that it had consented, or could be deemed to have consented, to the
products concerned being imported into the European Economic Area (EEA).
The question that the case addressed was whether consent could be inferred
from: (i) the fact that the proprietor of the trade mark had not communicated to
all subsequent purchasers of the goods placed on the market outside the EEA
his opposition to their being marketed within the EEA; (ii) the fact that the
goods carried no warning of a prohibition on their being placed on the market
within the EEA; and (iii) the fact that the trade mark proprietor had transferred
the ownership of the products bearing the trade mark without imposing any
contractual reservations. The ECJ ruled that consent must be expressed posi-
tively and that the factors taken into consideration in finding implied consent
must unequivocally demonstrate that the trade mark proprietor has renounced
any intention to enforce his exclusive rights. It was for the trader alleging
consent to prove it and not for the trade mark proprietor to demonstrate its
absence. Thus, implied consent to the marketing within the EEA of goods put
on the market outside that area could not be inferred from the mere silence of
the trade mark proprietor or from the fact that a trade mark proprietor has not
communicated his opposition to marketing within the EEA or from the fact
that the goods do not carry any warning that it is prohibited to place them on
the market within the EEA. Finally, consent could not be inferred from the fact
that the trade mark proprietor transferred ownership of the goods bearing the
mark without imposing contractual reservations.
7.105
Under the EU Trade Marks Directive a trade mark owner can object to the
parallel importation of trade-marked goods 'where there exist legitimate rea-
sons for the proprietor to oppose further commercialization of the goods,
especially where the condition of the goods is changed or impaired after they
have been put on the market'. This issue has arisen in a number of cases
concerning the repackaging of goods.
82
The essence of the current ECJ case law
80
Silhouette International v Hartlauer
(Case C-355/96),
Zino Davidoff v A&G Imports
(Case C-414/99) and
van
Doren v Lifestyle Sports
(Case C-244/00).
81
[2002] ETMR 109.
82
Hoffmann-La Roche v Centrafarm
(Case 102/77 [1978] ECR 1139);
Bristol-Myers Squibb and Others v Paranova
( Joined Cases C-427/93, C-429/93 and C-436/93 [1996] ECR I-3457);
Loendersloot v Ballantine
(Case
