130.

Accordingly, I am of the opinion that the questions referred to the Court should be answered as follows: Joined Cases C-427/93, C-429/93 and C-436/93 (1) Articles 30 and 36 of the Treaty and Article 7(1) and (2) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks are to be interpreted as meaning that, where goods bearing a trade mark are placed on the market in a Member State with the consent of the proprietor of the trade mark and another person buys those goods, places them in new external packaging, to which he affixes the trade mark, and markets the repackaged goods in another Member State, the proprietor of the trade mark cannot invoke it in order to prevent such marketing unless the repackaging is done in such a way that it is capable of affecting the original condition of the goods or otherwise impairing the reputation of the trade mark. In the case of pharmaceutical products, the person who carries out the repackaging of the goods must in principle inform the trade mark proprietor and provide him with a specimen of the repackaged product. He must also indicate on the repackaged product that he is responsible for the repackaging but need not mention the manufacturer of the goods or state that the proprietor of the trade mark has not authorized the repackaging. (2) The question whether the repackaging is capable of affecting the original condition of the goods or otherwise impairing the reputation of the trade mark is essentially a question of fact to be determined by the national court in accordance with its own domestic rules regarding procedural matters such as the burden of proof, the standard of proof and the admissibility of evidence. Those rules must not treat claims founded on Community law less favourably than claims founded on national law and must not make the enforcement of rights arising from Community law unduly difficult. (3) Where the product in question is a pharmaceutical product which was originally packaged in blister packs, phials, flasks or aerosol containers and the person responsible for the repackaging simply removes the blister packs, phials, flasks or aerosol containers from their original external packaging and places them in new external packaging without cutting or opening them, and where that person uses suitable premises, employs competent staff and takes all reasonable safeguards, there is not in principle any ground for finding that the original condition of the goods may be affected, and the national court is precluded from making such a finding in the absence of specific evidence. (4) The fact that the person responsible for the repackaging uses the same colour scheme for the repackaged product as the owner of the trade mark is irrelevant. (5) [Applies only to Case C-427/93] Where the person responsible for the repackaging inserts in the new packaging additional goods not produced under the responsibility of the owner of the trade mark, the latter may in principle object to the further marketing of the repackaged goods under the trade mark, unless the origin of the additional material is indicated in such a way as to dispel any impression that the trade mark owner is responsible for it. Joined Cases C-71/94, C-72/94 and C-73/94 (1) Articles 30 and 36 of the Treaty and Article 7(1) and (2) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks are to be interpreted as meaning that, where goods bearing a trade mark are placed on the market in a Member State with the consent of the proprietor of the trade mark and another person buys those goods, places them in new external packaging, through which the trade mark affixed to the internal packaging remains visible, and markets the repackaged goods in another Member State, the proprietor of the trade mark cannot invoke it in order to prevent such marketing unless the repackaging is done in such a way that it is capable of affecting the original condition of the goods or otherwise impairing the reputation of the trade mark. In the case of pharmaceutical products, the person who carries out the repackaging of the goods must in principle inform the trade mark proprietor and provide him with a specimen of the repackaged product. He must also indicate on the repackaged product that he is responsible for the repackaging but need not mention the manufacturer of the goods or state that the proprietor of the trade mark has not authorized the repackaging. (2) The question whether the repackaging is capable of affecting the original condition of the goods or otherwise impairing the reputation of the trade mark is essentially a question of fact to be determined by the national court in accordance with its own domestic rules regarding procedural matters such as the burden of proof, the standard of proof and the admissibility of evidence. Those rules must not treat claims founded on Community law less favourably than claims founded on national law and must not make the enforcement of rights arising from Community law unduly difficult. (3) Where the product in question is a pharmaceutical product which was originally packaged in blister packs and the person responsible for the repackaging simply removes the blister packs from their original external packaging and places them in new external packaging without cutting them, and where that person uses suitable premises, employs competent staff and takes all reasonable safeguards, there is not in principle any ground for finding that the original condition of the goods may be affected, and the national court is precluded from making such a finding in the absence of specific evidence. (4) Where the blister packs are severed, the owner of the trade mark is entitled to object to the further marketing of the goods if the national court considers that that practice is capable of affecting the original condition of the goods in view of the risk of contamination. (5) The owner of the trade mark is entitled to object to the further marketing of repackaged goods under the trade mark not only where the repackaging affects the technical quality of the goods but also where it gives them a shoddy appearance capable of damaging the reputation of the trade mark. (6) [Applies only to Case C-71/94] Where information printed on the back of the blister packs allocates the pills to specific days of the week for a certain period and that period becomes incomplete as a result of the severing of the blister packs, the owner of the trade mark is entitled to object to the further marketing of the goods if the national court considers that the interruption of the series of days of the week causes unacceptable confusion for the consumer or endangers his health or is detrimental to the reputation of the trade mark. (7) [Applies only to Case C-73/94] Where a trade mark owner sells two versions of a product in Member State A under the names ‘Sermion’ and ‘Sermion forte’ and sells in Member State B under the name ‘Sermion’ a product which corresponds to the product known as ‘Sermion forte’ in Member State A, he cannot invoke his trade mark rights in order to prevent the resale in Member State A of goods which he has placed on the market in Member State B under the name ‘Sermion’, even though the person who resells the goods describes them as ‘Sermion forte’. Case C-232/94 (1) Articles 30 and 36 of the Treaty and Article 7(1) and (2) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks are to be interpreted as meaning that, where goods bearing a trade mark are placed on the market in a Member State with the consent of the proprietor of the trade mark and another person buys those goods, places them in new external packaging, to which he affixes the trade mark, and markets the repackaged goods in another Member State, the proprietor of the trade mark cannot invoke it in order to prevent such marketing unless the repackaging is done in such a way that it is capable of affecting the original condition of the goods or otherwise impairing the reputation of the trade mark. The person who repackages the goods must in principle inform the trade mark proprietor and provide him with a specimen of the repackaged product. He must also indicate on the repackaged product that he is responsible for the repackaging but need not mention the manufacturer of the goods or state that the proprietor of the trade mark has not authorized the repackaging. The indication as to who is responsible for the repackaging must be written in such a way that a person with normal eyesight, exercising a normal degree of attentiveness, would be able to understand it. (2) The question whether the repackaging is capable of affecting the original condition of the goods or otherwise impairing the reputation of the trade mark is essentially a question of fact to be determined by the national court in accordance with its own domestic rules regarding procedural matters such as the burden of proof, the standard of proof and the admissibility of evidence. Those rules must not treat claims founded on Community law less favourably than claims founded on national law and must not make the enforcement of rights arising from Community law unduly difficult. (3) Where the product in question is a pharmaceutical product which was originally packaged in blister packs and the person responsible for the repackaging simply removes the blister packs from their original external packaging and places them in new external packaging without cutting them, and where that person uses suitable premises, employs competent staff and takes all reasonable safeguards, there is not in principle any ground for finding that the original condition of the goods may be affected, and the national court is precluded from making such a finding in the absence of specific evidence.