Joined Cases C-400/09 and C-207/10: Judgment of the Court (First Chamber) of 28 July 2011 (references for a preliminary ruling from the Højesteret — Denmark) — Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10) v Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme (Trade marks — Directive 89/104/EEC — Article 7(2) — Pharmaceutical products — Parallel imports — Repackaging of the product bearing the trade mark — New packaging indicating as the repackager the holder of the marketing authorisation on whose instructions the product was repackaged — Physical repackaging carried out by a separate undertaking)
Date: 2011-07-28
Institutions: Court of Justice
Subjects: approximation of laws, import (EU), packaging product, pharmaceutical product, trade mark








C_2011298EN.01000202.xml










8.10.2011   


EN


Official Journal of the European Union


C 298/2





Judgment of the Court (First Chamber) of 28 July 2011 (references for a preliminary ruling from the Højesteret — Denmark) — Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10) v Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme
(Joined Cases C-400/09 and C-207/10) (1)

(Trade marks - Directive 89/104/EEC - Article 7(2) - Pharmaceutical products - Parallel imports - Repackaging of the product bearing the trade mark - New packaging indicating as the repackager the holder of the marketing authorisation on whose instructions the product was repackaged - Physical repackaging carried out by a separate undertaking)
2011/C 298/03
Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings


Applicants: Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10)

Defendants: Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme

Re:

References for a preliminary ruling — Højesteret — Interpretation of the Court’s judgments in Case C-232/94 MPA Pharma and in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others, and 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) — Repackaging of a medicinal product which was the subject of parallel importation — Parallel importer which is the holder of the marketing authorisation for an imported medicinal product and which indicates itself, on the new packaging, as being the repackager, notwithstanding the fact that the purchase and repackaging of the medicinal product were in fact carried out by a separate company

Operative part of the judgment

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 must be interpreted as not allowing the proprietor of a trade mark relating to a pharmaceutical product which is the subject of parallel imports to oppose the further marketing of that product in repackaged form on the sole ground that the new packaging indicates as the repackager not the undertaking which, on instructions, actually repackaged the product and holds an authorisation to do so, but the undertaking which holds the marketing authorisation for the product, on whose instructions the repackaging was carried out, and which assumes liability for the repackaging.


(1)  OJ C 312, 19.12.2009.

OJ C 179, 3.7.2010.