Source: EURLEX
Language: en
Format: md

[**Avis juridique important**](../../../editorial/legal_notice.htm)

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# 61974J0016

**Judgment of the Court of 31 October 1974. - Centrafarm BV et Adriaan de Peijper v Winthrop BV. - Reference for a preliminary ruling: Hoge Raad - Netherlands. - Trade mark rights. - Case 16-74.** 
  
*European Court reports 1974 Page 01183  
 Greek special edition Page 00479  
 Portuguese special edition Page 00499  
 Spanish special edition Page 00481*

  

[Summary](#SM)  
[Parties](#I1)  
[Subject of the case](#I2)  
[Grounds](#MO)  
[Decision on costs](#CO)  
[Operative part](#DI)

## Keywords

  
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1 . FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - RIGHTS - PROTECTION - EXTENT

( EEC TREATY, ARTICLE 36 )

2 . FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - TRADE MARK - PRODUCT PROTECTED IN A MEMBER STATE - LICENCE TO SELL GRANTED BY THE OWNER IN ANOTHER MEMBER STATE - PROHIBITION ON SALE WITHIN THE COMMON MARKET - INADMISSIBILITY

( EEC TREATY, ARTICLE 36 )

3 . FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - TRADE MARK RELATING TO A PHARMACEUTICAL PRODUCT - DISTRIBUTION - HEALTH CONTROL BY THE OWNER - MISUSE OF COMMUNITY RULES - PROHIBITION

( EEC TREATY, ARTICLE 36 )

4 . FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - TRADE MARK - PRODUCTS MARKETED WITHIN THE UNITED KINGDOM - IMPORTATION INTO THE NETHERLANDS BY THE OWNER BEFORE 1 JANUARY 1975 - ARTICLE 42 OF THE ACT OF ACCESSION - FIELD OF APPLICATION

5 . COMPETITION - AGREEMENTS BETWEEN PARENT COMPANY AND SUBSIDIARIES - ADMISSIBILITY - CRITERIA

( EEC TREATY, ARTICLE 85 )*

## Summary

  
*1 . WHILST THE TREATY DOES NOT AFFECT THE EXISTENCE OF RIGHTS RECOGNIZED BY THE LEGISLATION OF A MEMBER STATE IN MATTERS OF INDUSTRIAL AND COMMERCIAL PROPERTY, YET THE EXERCISE OF THESE RIGHTS MAY NEVERTHELESS, DEPENDING ON THE CIRCUMSTANCES, BE AFFECTED BY THE PROHIBITIONS IN THE TREATY, SINCE ARTICLE 36 ADMITS OF DEROGATIONS FROM THE FREE MOVEMENT OF GOODS ONLY WHERE SUCH DEROGATIONS ARE JUSTIFIED FOR THE PURPOSE OF SAFEGUARDING THE RIGHTS WHICH CONSTITUTE THE SPECIFIC SUBJECT MATTER OF THIS PROPERTY .

2 . THE EXERCISE, BY THE OWNER OF A TRADE MARK, OF THE RIGHT WHICH HE ENJOYS UNDER THE LEGISLATION OF MEMBER STATE TO PROHIBIT THE SALE, IN THAT STATE, OF A PRODUCT WHICH HAS BEEN MARKETED UNDER THE TRADE MARK IN ANOTHER MEMBER STATE BY THE TRADE MARK OWNER OR WITH HIS CONSENT IS INCOMPATIBLE WITH THE RULES OF THE EEC TREATY CONCERNING THE FREE MOVEMENT OF GOODS WITHIN THE COMMON MARKET .

IN THIS CONNEXION, IT IS A MATTER OF NO SIGNIFICANCE THAT THERE EXIST, AS BETWEEN THE EXPORTING AND IMPORTING MEMBER STATES, PRICE DIFFERENCES RESULTING FROM GOVERNMENTAL MEASURES ADOPTED IN THE EXPORTING STATE WITH A VIEW TO CONTROLLING THE PRICE OF THE PRODUCT .

3 . THE OWNER OF THE TRADE MARK RELATING TO A PHARMACEUTICAL PRODUCT CANNOT AVOID THE INCIDENCE OF COMMUNITY RULES CONCERNING THE FREE MOVEMENT OF GOODS FOR THE PURPOSE OF CONTROLLING THE DISTRIBUTION OF THE PRODUCT WITH A VIEW TO PROTECTING THE PUBLIC AGAINST DEFECTS THEREIN .

4 . ARTICLE 42 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES CANNOT BE INVOKED TO PREVENT IMPORTATION INTO THE NETHERLANDS, EVEN BEFORE 1 JANUARY 1975, OF GOODS PUT ONTO THE MARKET IN THE UNITED KINGDOM BY THE TRADE MARK OWNER OR WITH HIS CONSENT .

5 . ARTICLE 85 OF THE TREATY IS NOT CONCERNED WITH AGREEMENTS OR CONCERTED PRACTICES BETWEEN UNDERTAKINGS BELONGING TO THE SAME CONCERN AND HAVING THE STATUS OF PARENT COMPANY AND SUBSIDIARY, IF THE UNDERTAKINGS FORM AN ECONOMIC UNIT WITHIN WHICH THE SUBSIDIARY HAS NO REAL FREEDOM TO DETERMINE ITS COURSE OF ACTION ON THE MARKET, AND IF THE AGREEMENTS OR PRACTICES ARE CONCERNED MERELY WITH THE INTERNAL ALLOCATION OF TASKS AS BETWEEN THE UNDERTAKINGS .*

## Parties

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