Jurisprudence has had fixed rules for a long time on the
reconditioning of pharmaceutical products by parallel
importers, without the consent of the trade mark owner.
The reconditioning must not affect the original condition of
the product. The presentation of the product must not harm the
image of the brand and its proprietor. If there is new
packaging, it must clearly indicate the person who carried out
the reconditioning and the product. Finally, the importer must
notify the trade mark owner of the future sale and provide him
with, on request, a specimen of the reconditioning.
These conditions allow the trade mark owner to maintain some
control over the distribution of his products by parallel
New opportunities for the parallel market are now offered by
a decision recently rendered by the Court of Justice of the
European Union (CJEU) (decision of the CJEU, May 17 2018
In this case, the parallel importer added a new label on the
pharmaceuticals to permit their importation. The trade mark
owner opposed this commercialisation insofar as the importer
failed to inform him about this reimport and the new packaging
The Court noted that in all cases until then the
reconditioning had required the opening of the original
packaging. Here, the packaging had not been modified, nor the
original presentation affected.
The Court made the following points:
(i) the importer had limited himself to affixing an
additional label on an unprinted part of the packaging, which
had not been opened;
(ii) this label was small and included only the name of the
parallel importer, its address and telephone number, a barcode
and a pharmacological number.
As a result, affixing such a label did not contravene the
trade mark holder's rights, and the parallel importer was not
obliged to inform the trade mark holder of his action.
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