Opinion of the Advocate General — ECLI:EU:C:2002:381
Date: 2002-06-18
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Intellectual, industrial and commercial property;Approximation of laws;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Germany

SUMMARY — CASE C-244/00 
Summary of the Judgment 
Approximation of laws — Trade marks — Directive 89/104 — Exhaustion of the right 
conferred by a trade mark — Rule placing the burden of proof on the third party relying 
on exhaustion — Whether permissible — Limits 
(Arts 28 and 30 EC; Council Directive 89/104, Art. 7(1)) 
A rule of evidence according to which 
exhaustion of the trade mark right con­
stitutes a plea in defence for a third party 
against whom the trade mark proprietor 
brings an action, so that the existence of the 
conditions for such exhaustion must, as a 
rule, be proved by the third party who 
relies on it, is consistent with Community 
law and, in particular, with Articles 5 and 7 
of First Directive 89/104 to approximate 
the laws of the Member States relating to 
trade marks, as amended by the Agreement 
on the European Economic Area (EEA). 
However, the requirements deriving from 
the protection of the free movement of 
goods enshrined, inter alia, in Articles 28 
EC and 30 EC may mean that this rule of 
evidence needs to be qualified. 
Accordingly, where a third party succeeds 
in establishing that there is a real risk of 
partitioning of national markets if he 
himself bears that burden of proof, par­
ticularly where the trade mark proprietor 
markets his products in the EEA using an 
exclusive distribution system, it is for the 
proprietor of the trade mark to establish 
that the products were initially placed on 
the market outside the EEA by him or with 
his consent. If such evidence is adduced, it 
is for the third party to prove the consent of 
the trade mark proprietor to subsequent 
marketing of the products in the EEA. 
(see para. 42, operative part) 
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