In a recent case relating to a product (a medical device)
that treats coughs, some interesting issues were raised
regarding parallel imports, repackaging and unfair
The Greek distributor of this product brought a preliminary
injunction (PI) action against a parallel importer of the same
product that was imported from another EU member state. The
defendant had attached its name and a summary of useful
information to a label on the package of the product and,
additionally, it had inserted a leaflet within the package
containing the product's critical information in the Greek
language. The action was based on unfair competition rules
rather than on trade mark law.
The PI judge ruled that there is no unfair competition on
the part of the defendant as the information, either attached
or inserted, was necessary for the product's launch on to the
Greek market. However, the PI judge did not further consider
whether the defendant's above-mentioned actions constitute
"repackaging" as defined by the EU case law regarding
exhaustion of trade mark rights.
According to the Greek unfair competition rules, any
purposeful competitive act that runs contrary to public morals
is prohibited. In that sense, if the defendant's
above-mentioned acts were to be found to be an impermissible
"repackaging", this might well mean that they constitute an act
running contrary to public morals, even if trade mark
protection is not directly invoked.
Notably, the PI judge dismissed the trade mark owner's
intervention filed in favour of the claimant by ruling that the
trade mark owner should have chosen a procedural remedy under
which an independent protection against the defendant would
have been sought.
It seems that this judgment is not free from difficulties,
which are anyway frequently present in parallel imports cases.
It is certain though that a coughing out ruling does not help
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