Opinion of the Advocate General — ECLI:EU:C:1997:95
Date: 1997-02-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
Free movement of goods — Industrial and commercial property — Trade mark rights — Product 
put on-the market in a Member State by the trade mark owner or with his consent — Reaffixing 
by a third party of the Ubel bearing the trade mark — Opposition by the trade mark owner — 
Permissible — Conditions 
(EC Treaty, Art. 36) 
I - 6227 
SUMMARY — CASE C-349/95 
Article 36 must be interpreted as meaning 
that the owner of trade mark rights may, 
even if that constitutes a barrier to intra-
Community trade, rely on those rights to 
prevent a third party from removing and 
then reaffixing or replacing labels bearing the 
mark which the owner has himself affixed to 
products he has put on the Community mar­
ket, unless the following conditions are satis­
fied: 
— it is established that the use of the trade 
mark rights by the owner to oppose the 
marketing of the relabelled products 
under that trade mark would contribute 
to the artificial partitioning of the mar­
kets between Member States. That is the 
case in particular if the labels are 
removed and reaffixed for the purpose of 
removing the identification numbers 
which the owner has applied to his prod­
ucts in order to be able to reconstruct the 
itinerary of those products, with the pur­
pose of preventing dealers from supply­
ing persons carrying on parallel trade. 
However, where identification numbers 
have been applied to comply with a legal 
obligation or to attain important objec­
tives which are legitimate from the point 
of view of Community law, the fact that 
an owner of trade mark rights makes use 
of those rights to prevent a third party 
from removing and then reaffixing or 
replacing labels bearing his trade mark in 
order to remove those numbers does not 
contribute to an artificial partitioning of 
the markets between Member States; 
— it is shown that the relabelling cannot 
affect the original condition of the prod­
uct; 
— the presentation of the relabelled product 
is not such as to be liable to damage the 
reputation of the trade mark and its 
owner; and 
— the person who relabels the products 
informs the trade mark owner of the rela­
belling before the relabelled products are 
put on sale. 
I - 6228