Geography Reference
In-Depth Information
is that an importer who repackages and reapplies a trade mark will infringe,
unless it satisfies all five of the following conditions:
+
It is 'necessary' to repackage to effectively market the product in the
importing country.
+
The repackaging has no detrimental effect on the original condition of the
product and proper instructions are included.
+
There is clear identification of the manufacturer and the importer.
+
The presentation of the repackaged goods causes no harm to the trade
mark.
+
Proper notice is provided.
7.106
For example,
Merck, Sharp & Dohme GmbH v Paranova Pharmazeutika Handels
GmbH
83
was concerned with the importation to Austria from Spain of pharma-
ceutical products. The importer had the products repackaged in Denmark, with
new outer packaging, and attached instructions translated into German. Merck
argued that the marketability of the product would be jeopardised because a
significant proportion of the consumers in Austria were suspicious of repack-
aged pharmaceutical products clearly intended for the market of another state.
The ECJ observed that a trade mark proprietor's opposition to the repackaging
was not justified if it hinders effective access of the imported product to the
market of a state.
(d) Goods involved in criminal procedures
Article 1(6) provides that the Customs Regulation 'shall not affect national or
Union law on intellectual property or the laws of the Member States in relation
to criminal procedures'.
5. Application of border controls to geographical indications
(a) Definitions
i. Intellectual property right
'Intellectual property right' is defined in Art 2(1) to mean, inter alia:
7.107
(a) a trade mark;
...
(d) a geographical indication;
C-349/95); and
Upjohn v Paranova
(Case C-379/97[1999] ECR I-6927;
Merck, Sharp & Dohme GmbH v
Paranova Pharmazeutika Handels GmbH
(Case C-443/99);
Glaxo Group Ltd & Ors v Dowelhurst Ltd & Anr
[2000] EWHC Ch 134;
Boehringer Ingelheim KG v Springward Limited
[2004] EWCA Civ 129.
83
[2002] ECR I-03703.
