Ag Repackaging Opinion

AG Sharpston has delivered her opinion inwards the latest instalment of the Boehringer Ingelheim repackaging saga. She has advised the ECJ to dominion equally follows:

– The 5 weather laid upwards out inwards Joined Cases C-427/93, C-429/93 in addition to C-436/93 Bristol-Myers Squibb [1996] ECR I-3457, [1996] ETMR 1 (‘the BMS conditions’) produce non utilize where a parallel importer markets inwards 1 Member State a pharmaceutical production imported from closed to other Member State inwards its master copy internal in addition to external packaging to which the parallel importer has applied an additional external label printed inwards the linguistic communication of the Member State of importation.

– The requirement that repackaging hold upwards necessary (the kickoff BMS condition) applies simply to the fact of reboxing in addition to does non extend to precise vogue in addition to style.

– The requirement that the presentation of the repackaged production hold upwards non such equally to hold upwards liable to harm the reputation of the merchandise score or its possessor (the 4th BMS condition) is non express to defective, misfortunate character or untidy packaging: the number is whether at that topographic point is a serious adventure that the reputation of the merchandise score volition hold upwards damaged.

– Both inappropriate presentation of the merchandise score in addition to wrong proposition of a commercial link are capable inwards regulation of damaging the merchandise mark’s reputation. Whether item forms of repackaging crusade such harm in addition to whether the harm is sufficiently serious to sum to a ‘legitimate reason’ inside the important of Article 7(2) of Council Directive 89/104 is a query of fact for the national court.

– In circumstances where the importer has failed to give discovery but has complied alongside the other BMS conditions, he infringes yesteryear every subsequent importation. It is for the national courtroom to receive upwards one's heed the appropriate sanction, which should hold upwards effective in addition to dissuasive. It should too hold upwards proportionate in addition to thence should non hold upwards equal to the sanction that would utilize if the other BMS weather had too been breached.

– The parallel importer bears the burden of proving compliance alongside the first, second, 3rd in addition to 5th BMS conditions. The merchandise score possessor bears the burden of proving serious adventure of harm to the reputation of the merchandise score or himself (the 4th BMS condition).

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