Order — ECLI:EU:C:2010:651
Date: 2010-10-28
Language of the case: Bulgarian
Court formation: Fifth Chamber
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary of the Order 1. Approximation of laws – Trade marks – Directive 89/104 – Rights conferred by a trade mark – Right to prohibit the importation or exportation of goods bearing the mark – Definition of ‘importation’ (Council Directive 89/104, Art. 5(3)(c)) 2. Approximation of laws – Trade marks – Directive 89/104 – Rights conferred by a trade mark – Right to prohibit the first placing into circulation within the European Economic Area of original goods bearing the mark (Council Directive 89/104, Arts 5 and 7(1)) 1. When original goods sent to a Member State from a non-member State have not yet been released for free circulation, but are placed under the customs warehousing procedure, there is no ‘importation’ within the meaning of Article 5(3) of First Directive 89/104 on trade marks. (see para. 18) 2. First Directive 89/104 on trade marks may not be interpreted as leaving it open to the Member States to provide in their domestic law for exhaustion of the rights conferred by a trade mark in respect of products put on the market in non-member States. The effect of the directive is to limit exhaustion of the rights conferred on the proprietor of a trade mark to those cases alone in which goods have been put on the market in the EEA and thus to allow the proprietor to control the initial marketing in the EEA of goods bearing the mark. Accordingly, when goods bearing a mark have not previously been put on the market in the EEA by the proprietor of that mark or with his consent, Article 5 of the directive confers on that proprietor exclusive rights which entitle him, in particular, to prohibit any third party from importing those goods, offering them, or putting them on the market or stocking them for these purposes. Thus, Article 5 of the directive must be interpreted as meaning that the proprietor of a trade mark may prevent original goods bearing that mark from being put on the market in the EEA for the first time without his consent. (see paras 22-24, 26, operative part)