The NERA study, together with the comments of the Member States and interested circles, have provided sufficient information as a basis for a decision. It was therefore important to make a decision on whether to change the current Community-wide exhaustion regime or not. Changing the exhaustion regime for trade marks only would produce little effect on the market place given that the large majority of products are covered by a number of intellectual property rights. However, to introduce international exhaustion for all IP rights would not be appropriate. It is crucial that the exhaustion regimes for national trade mark and Community trade marks are the same.
Unanimity is necessary to change the Regulation.
It is believed that at least some Member States would possibly resist any change to the Regulation. The possible co-existence of two different schemes would create confusion in the market place as well as in the minds of consumers, in particular in relation to the question of whether a given trade marked product has been lawfully put on the market or not. A change of exhaustion regime would make it more difficult for EC firms to sell at a lower price outside the Community. The change of regime may over time inhibit investment in new brands or even make trade mark holders withdraw products from the market. Trade mark holders who continue to provide the branded goods may choose to reduce the quality of goods or the provision of associated services.