Judgment of the Court 23 April 2002 in Case C-143/00 (Reference for a preliminary ruling from the High Court of Justice): Boehringer Ingelheim KG, Boehringer Ingelheim Pharma KG v Swingward Ltd, and between Boehringer Ingelheim KG, Boehringer Ingelheim Pharma KG and Dowelhurst Ltd, and between Glaxo Group Ltd and Swingward Ltd, and between Boehringer Ingelheim KG, Boehringer Ingelheim Pharma KG and Dowelhurst Ltd, and between Glaxo Group Ltd, The Wellcome Foundation Ltd and Dowelhurst Ltd, and between SmithKline Beecham plc, Beecham Group plc, SmithKline & French Laboratories Ltd and Dowelhurst Ltd and between Eli Lilly and Co. and Dowelhurst Ltd (Trade marks — Directive 89/104/EEC — Article 7(2) — Exhaustion of the rights conferred by the trade mark — Pharmaceutical products — Parallel importation — Repackaging of the trade-marked product)
Date: 2002-06-15
Institutions: Court of Justice
Subjects: United Kingdom, brand name, distributive trades, import, interpretation of the law, trade-mark law

C 144/6

EN

Official Journal of the European Communities

15.6.2002

JUDGMENT OF THE COURT

23 April 2002

in Case C-143/00 (Reference for a preliminary ruling from
the High Court of Justice): Boehringer Ingelheim KG,
Boehringer Ingelheim Pharma KG v Swingward Ltd, and
between Boehringer Ingelheim KG, Boehringer Ingelheim
Pharma KG and Dowelhurst Ltd, and between Glaxo
Group Ltd and Swingward Ltd, and between Boehringer
Ingelheim KG, Boehringer Ingelheim Pharma KG and
Dowelhurst Ltd, and between Glaxo Group Ltd, The
Wellcome Foundation Ltd and Dowelhurst Ltd, and
between SmithKline Beecham plc, Beecham Group plc,
SmithKline & French Laboratories Ltd and Dowelhurst
Ltd and between Eli Lilly and Co. and Dowelhurst Ltd (1)

(Trade marks — Directive 89/104/EEC — Article 7(2) —
Exhaustion of the rights conferred by the trade mark
importation —
— Pharmaceutical products — Parallel

Repackaging of the trade-marked product)

(2002/C 144/08)

(Language of the case: English)

In Case C-143/00: Reference to the Court under Article 234
EC by the High Court of Justice of England and Wales,
Chancery Division (United Kingdom), for a preliminary ruling
in the proceedings pending before that court between Boeh-
ringer Ingelheim KG, Boehringer Ingelheim Pharma KG and
Swingward Ltd, and between Boehringer Ingelheim KG, Boeh-
ringer Ingelheim Pharma KG and Dowelhurst Ltd, and between
Glaxo Group Ltd and Swingward Ltd, and between Boehringer
Ingelheim KG, Boehringer Ingelheim Pharma KG and Dowel-
hurst Ltd, and between Glaxo Group Ltd, The Wellcome
Foundation Ltd and Dowelhurst Ltd, and between SmithKline
Beecham plc, Beecham Group plc, SmithKline & French
Laboratories Ltd and Dowelhurst Ltd and between Eli Lilly and
Co. and Dowelhurst Ltd, on the interpretation of Article 7(2)
of First Council Directive 89/104/EEC of 21 December 1988
to approximate the laws of the Member States relating to trade
marks (OJ 1989 L 40, p. 1), as amended by the Agreement on
the European Economic Area of 2 May 1992 (OJ 1994 L 1,
p. 3), and of Articles 28 EC and 30 EC, the Court, composed
of: G. C. Rodrı´guez Iglesias, President, P.
Jann (President
of Chamber), C. Gulmann (Rapporteur), D. A. O. Edward,
M. Wathelet, R. Schintgen, V. Skouris, J. N. Cunha Rodrigues
and C. W. A. Timmermans, Judges; F. G. Jacobs, Advocate
General; D. Louterman-Hubeau, Head of Division, for the
Registrar,has given a judgment on 23 April 2002, in which it
has ruled:

States relating to trade marks, as amended by the Agreement
on the European Economic Area of 2 May 1992, must be
interpreted as meaning that a trade mark proprietor may rely
on its trade mark rights in order to prevent a parallel importer
from repackaging pharmaceutical products unless the exercise
of those rights contributes to artificial partitioning of the
markets between Member States.

2.

Replacement packaging of pharmaceutical products is objectively
necessary within the meaning of the Court’s case-law if, without
such repackaging, effective access to the market concerned, or to
a substantial part of that market, must be considered to be
hindered as the result of strong resistance from a significant
proportion of consumers to relabelled pharmaceutical products.

3. A parallel importer must, in any event, in order to be entitled
to repackage trade-marked pharmaceutical products, fulfil the
requirement of prior notice. If the parallel importer does not
satisfy that requirement, the trade mark proprietor may oppose
the marketing of the repackaged pharmaceutical product. It is
incumbent on the parallel importer himself to give notice to the
trade mark proprietor of the intended repackaging. In the event
of dispute, it is for the national court to assess, in the light of
all the relevant circumstances, whether the proprietor had a
reasonable time to react to the intended repackaging.

(1) OJ C 233 of 12.8.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

25 April 2002

in Case C-154/00: Commission of the European Communi-
ties v Hellenic Republic (1)

(Failure by a Member State to fulfil its obligations —
Directive 85/374/EEC — Product liability — Incorrect
transposition)

(2002/C 144/09)

(Language of the case: Greek)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

1. Article 7(2) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member

In Case C-154/00, Commission of the European Communities
(Agent: M. Patakia) v Hellenic Republic (Agents: A. Samoni-