CELEX: C2002/144/08
Language: en
Date: 2002-06-15 00:00:00
Title: 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)

C 144/6               EN                     Official Journal of the European Communities                                           15.6.2002
                JUDGMENT OF THE COURT                                         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
                         23 April 2002                                        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
in Case C-143/00 (Reference for a preliminary ruling from                     markets between Member States.
the High Court of Justice): Boehringer Ingelheim KG,
Boehringer Ingelheim Pharma KG v Swingward Ltd, and                     2.    Replacement packaging of pharmaceutical products is objectively
between Boehringer Ingelheim KG, Boehringer Ingelheim                         necessary within the meaning of the Court’s case-law if, without
Pharma KG and Dowelhurst Ltd, and between Glaxo                               such repackaging, effective access to the market concerned, or to
Group Ltd and Swingward Ltd, and between Boehringer                           a substantial part of that market, must be considered to be
Ingelheim KG, Boehringer Ingelheim Pharma KG and                              hindered as the result of strong resistance from a significant
Dowelhurst Ltd, and between Glaxo Group Ltd, The                              proportion of consumers to relabelled pharmaceutical products.
Wellcome Foundation Ltd and Dowelhurst Ltd, and
between SmithKline Beecham plc, Beecham Group plc,                      3.    A parallel importer must, in any event, in order to be entitled
SmithKline & French Laboratories Ltd and Dowelhurst                           to repackage trade-marked pharmaceutical products, fulfil the
 Ltd and between Eli Lilly and Co. and Dowelhurst Ltd (1)                     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
(Trade marks — Directive 89/104/EEC — Article 7(2) —                          incumbent on the parallel importer himself to give notice to the
Exhaustion of the rights conferred by the trade mark                          trade mark proprietor of the intended repackaging. In the event
— Pharmaceutical products — Parallel importation —                            of dispute, it is for the national court to assess, in the light of
          Repackaging of the trade-marked product)                            all the relevant circumstances, whether the proprietor had a
                                                                              reasonable time to react to the intended repackaging.
                        (2002/C 144/08)
                                                                        (1) OJ C 233 of 12.8.2000.
                  (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,                                     JUDGMENT OF THE COURT
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                                            (Fifth Chamber)
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                                            25 April 2002
Ingelheim KG, Boehringer Ingelheim Pharma KG and Dowel-
hurst Ltd, and between Glaxo Group Ltd, The Wellcome                    in Case C-154/00: Commission of the European Communi-
Foundation Ltd and Dowelhurst Ltd, and between SmithKline                                   ties v Hellenic Republic (1)
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)           (Failure by a Member State to fulfil its obligations —
of First Council Directive 89/104/EEC of 21 December 1988               Directive 85/374/EEC — Product liability — Incorrect
to approximate the laws of the Member States relating to trade                                       transposition)
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,
                                                                                                   (2002/C 144/09)
p. 3), and of Articles 28 EC and 30 EC, the Court, composed
of: G. C. Rodrı́guez Iglesias, President, P. Jann (President
of Chamber), C. Gulmann (Rapporteur), D. A. O. Edward,                                       (Language of the case: Greek)
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                 (Provisional translation; the definitive translation will be published
Registrar,has given a judgment on 23 April 2002, in which it                                in the European Court Reports)
has ruled:
1.    Article 7(2) of First Council Directive 89/104/EEC of             In Case C-154/00, Commission of the European Communities
      21 December 1988 to approximate the laws of the Member            (Agent: M. Patakia) v Hellenic Republic (Agents: A. Samoni-