Judgment — ECLI:EU:C:2010:313
Date: 2010-06-03
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Approximation of laws – Trade marks – Directive 89/104 – Exhaustion of the rights conferred by the trade mark – Condition – Express or implied consent of the proprietor to putting on the market in the Community or the European Economic Area – Products put on the market by an intermediary in breach of a clause in the distribution agreement (Council Regulation No 40/94, Art. 13(1); Council Directive 89/104, Art. 7(1)) Article 13(1) of Regulation No 40/94 on the Community trade mark and Article 7(1) of Directive 89/104 on trade marks are to be interpreted as meaning that the rights conferred by the trade mark are exhausted only if, according to an assessment which it is for the national court to make, it may be concluded that the proprietor of the mark expressly or impliedly consented to a putting on the market, either in the Community or in the European Economic Area, of the goods in respect of which that exhaustion is claimed to exist. Where ‘perfume testers’ are made available, without transfer of ownership and with a prohibition on sale, to intermediaries who are contractually bound to the trade mark proprietor for the purpose of allowing their customers to test the contents, where the trade mark proprietor may at any time recall those goods and where the presentation of the goods is clearly distinguishable from that of the bottles of perfume normally made available to the intermediaries by the trade mark proprietor, the fact that those testers are bottles of perfume which bear not only the word ‘Demonstration’ but also the statement ‘Not for Sale’ precludes, in the absence of any evidence to the contrary, which it is for the national court to assess, a finding that the trade mark proprietor impliedly consented to putting them on the market. (see paras 47-48, operative part)