Yesterday saw the latest evolution inwards the protracted together with keenly fought grouping of cases that goes nether the handy banner of Boehringer Ingelheim v Swingward. This was the setting out past times Lord Justice Jacob (for the Court of Appeal) of the questions which are to travel referred to the European Court of Justice relating to the legitimacy of reboxing together with overstickering pharmaceutical products that are bought inwards i European Union province together with and hence imported into roughly other inwards which the language, or marketplace seat preferences, are different. The parcel for the ECJ includes v questions on repackaging, v on overstickering together with a farther 4 on the requirement of the parallel importer to give let on to the merchandise rank proprietor (the master copy pharmaceutical manufacturer) before doing either of those things.
The questions are every bit follows:
(1) Reboxed products: Where a parallel importer markets inwards i Member State a pharmaceutical production imported from roughly other Member State inwards its master copy internal packaging but alongside a novel outside carton printed inwards the linguistic communication of the Member State of importation (a “reboxed” product): (a) does the importer demeanour the burden of proving that the novel packaging complies alongside each of the weather laid out inwards Joined Cases C-427/93, C-429/93 together with C-436/93 Bristol-Myers Squibb v Paranova or does the merchandise rank proprietor demeanour the burden of proving that those weather convey non been complied alongside or does the burden of proof vary from status to condition, together with if hence how? (b) does the outset status laid out inwards Bristol-Myers Squibb v Paranova every bit interpreted inwards Case C-379/97 Upjohn v Paranova together with Case C-143/00 Boehringer v Swingward, namely that it must travel shown that it is necessary to repackage the production inwards companionship that effective marketplace seat access is non hindered, apply precisely to the fact of reboxing (as held past times the EFTA Court inwards Case E-3/02 Paranova Inc v Merck & Co Inc) or does it likewise apply to the precise mode together with trend of the reboxing carried out past times the parallel importer, together with if hence how? (c) is the 4th status laid out inwards Bristol-Myers Squibb v Paranova, namely that the presentation of the repackaged production is non such every bit to travel liable to harm the reputation of the merchandise rank or its owner, solely infringed if the packaging is defective, of wretched character or untidy or does it extend to anything which damages the reputation of the merchandise mark? (d) if the response to query 1(c) is that the 4th status is infringed past times anything which damages the reputation of the merchandise rank together with if either (i) the merchandise rank is non affixed to the novel outside carton (“de-branding”) or (ii) the parallel importer applies either his ain logo or a house-style or get-up or a get-up used for a publish of dissimilar products to the novel outside carton (“co-branding”) must such forms of box blueprint travel regarded every bit damaging to the reputation of the merchandise rank or is that a query of fact for the national court? (e) if the response to query 1(d) is that it is a query of fact, on whom does the burden of proof lie?
(2) Overstickered products: Where a parallel importer markets inwards i Member State a pharmaceutical production imported from roughly other Member State inwards its master copy internal together with external packaging to which the parallel importer has applied an additional external label printed inwards the linguistic communication of the Member State of importation (an “overstickered” product): (a) create the v weather laid out inwards Bristol-Myers Squibb v Paranova apply at all? (b) if the response is query 2(a) is yes, does the importer demeanour the burden of proving that the overstickered packaging complies alongside each of the weather laid out inwards Bristol-Myers Squibb v Paranova or does the merchandise rank proprietor demeanour the burden of proving that those weather convey non been complied alongside or does the burden of proof vary from status to condition? (c) if the response to query 2(a) is yes, does the outset status laid out inwards Bristol-Myers Squibb v Paranova every bit interpreted inwards Upjohn v Paranova together with Boehringer v Swingward, namely that it must travel shown that it is necessary to repackage the production inwards companionship that effective marketplace seat access is non hindered, apply precisely to the fact of overstickering or does it likewise apply to the precise mode together with trend of overstickering adopted past times the parallel importer? (d) if the response to query 2(a) is yes, is the 4th status laid out inwards Bristol-Myers Squibb v Paranova, namely that the presentation of the repackaged production is non such every bit to travel liable to harm the reputation of the merchandise rank or its owner, solely infringed if the packaging is defective, of wretched character or untidy or does it extend to anything which damages the reputation of the merchandise mark? (e) if the response to query 2(a) is yeah together with the response to query 2(d) is that the 4th status is infringed past times anything which damages the reputation of the merchandise mark, is it damaging to the reputation of a merchandise rank for this role if either (i) the additional label is positioned hence every bit wholly or partially to obscure i of the proprietor’s merchandise marks or (ii) the additional label fails to province that the merchandise rank inwards query is a merchandise rank owned past times the proprietor or (iii) the advert of the parallel importer is printed inwards working capital alphabetic character letters?
(3) Notice: Where a parallel importer has failed to give let on inwards observe of a repackaged production every bit required past times the 5th status of Bristol-Myers Squibb v Paranova, together with accordingly has infringed the proprietor’s merchandise mark(s) for that argue only: (a) is every subsequent human action of importation of that production an infringement or does the importer solely infringe until such fourth dimension every bit the proprietor has travel aware of the production together with the applicable let on catamenia has expired? (b) is the proprietor entitled to claim fiscal remedies (i.e. damages for infringement or the handing over of all profits made past times infringement) past times argue of the importer’s acts of infringement on the same footing every bit if the goods had been spurious? (c) is the granting of fiscal remedies to the proprietor inwards observe of such acts of infringement past times the importer dependent area to the regulation of proportionality? (d) if not, upon what footing should such compensation travel assessed given that the products inwards query were placed on the marketplace seat inside the EEA past times the proprietor or alongside his consent?
wonders whether the ECJ volition response all these questions, or whether it volition precisely shrug its shoulders together with enjoin that the response to them is somehow implicit inwards its before ruling together with that the Court of Appeal should travel able to run them out for themselves.
Court of Appeal’s before judgment of 5 March 2004 here; IPKat spider web log on it here
European Court of Justice’s before ruling here
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