ECJ Again Rules In Favour Of Repackaging Of Parallel-Traded Pharmaceuticals

Author:Mr Peter L'Ecluse
Profession:Van Bael & Bellis
 
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On 28 July 2011, the Court of Justice of the European Union (the "ECJ") handed down a judgment addressing questions referred to it by the Danish Supreme Court (the "Referring Court") with respect to the rules governing the repackaging of parallel-traded pharmaceuticals.

The proceedings before the Referring Court had been initiated by Merck against Orifarm and Paranova, two Danish parallel importers, on the basis of Article 7(2) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks. In Bristol-Myers Squibb, a judgment of 1996, the ECJ set forth 5 conditions which, when met by parallel importers, preclude trade mark owners from objecting to the marketing of a repackaged pharmaceutical product pursuant to this provision. Under one of these conditions, the new packaging should clearly indicate the repackager of the product. Merck felt it was entitled to act against Orifarm and Paranova given that they had mentioned their own names on the new packages of parallel imported Merck products, rather than the names of the actual repackaging companies which had acted as their subcontractors.

On 12...

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