Opinion of the Advocate General — ECLI:EU:C:1999:173
Date: 1999-03-25
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 
1. Approximation of laws — Trade marks — Directive 89/104 — Exhaustion of the right 
conferred by a trade mark — Conditions — Product placed on the market in the 
Community or the European Economic Area — National legislation providing for the 
exhaustion of rights in respect of products placed on the market in non-member 
countries — Not permissible 
(Council Directive 89/104, Art. 7(1)) 
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SUMMARY — CASE C-173/98 
2. Approximation of laws — Trade marks — Directive 89/104 — Product placed on the 
market in the Community or in the European Economic Area with the consent of the 
trade-mark proprietor — Exhaustion of the right conferred by the trade mark — 
Scope — Limited to individual items of the approved product that have been put on the 
market with the consent of the proprietor 
(Council Directive 89/104, Art. 7(1) and (2)) 
1. Article 7(1) of the First Council Direc­
tive 89/104 on trade marks, as amen­
ded by the Agreement on the European 
Economic Area (EEA), must be inter­
preted as meaning that rights conferred 
by a mark are exhausted only if the 
products have been put on the market 
in the Community (in the EEA since the 
EEA Agreement entered into force) and 
that the Directive does not leave 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 countries. 
2. The purpose of Article 7(1) of the First 
Council Directive 89/104 on trade 
marks, as amended by the Agreement 
on the European Economic Area 
(EEA), is to make possible the further 
marketing of an individual item of a 
product bearing a trade mark that has 
been put on the market in the Com­
munity (in the EEA since the EEA 
Agreement entered into force) with the 
consent of the trade-mark proprietor 
and to prevent him from opposing such 
marketing. The rights conferred by a 
trade mark are exhausted only in 
respect of the individual items of the 
product which have been put on the 
market with the proprietor's consent. 
With respect to the other individual 
items of that product, put on the 
market without his consent, the pro­
prietor may continue to prohibit the 
use of the mark in pursuance of the 
right conferred on him by the Direc­
tive. Accordingly, Article 7(1) of the 
Directive must be interpreted as mean­
ing that, for there to be consent within 
the meaning of that provision, such 
consent must relate to each individual 
item of the product in respect of which 
exhaustion is pleaded. 
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