CELEX: C1996/336/19
Language: en
Date: 1996-11-09 00:00:00
Title: JUDGMENT OF THE COURT of 11 July 1996 in Case C-232/94 (reference for a preliminary ruling by the Oberlandesgericht Köln): MPA Pharma GmbH v. Rhône-Poulenc Pharma GmbH (Repackaging of trade-marked products - Article 36 of the EC Treaty)

9 . 11 . 96            EN                  Official Journal of the European Communities                                No C 336/ 11
               JUDGMENT OF THE COURT                                      the packaging is not indirectly affected, for example, by
                        of 11 July 1996                                   the fact that the external or inner packaging of the
                                                                          repackaged product or new user instructions or
in Case C-232/94 ( reference for a preliminary ruling by                  information omits certain important information or
the Oberlandesgericht Koln ): MPA Pharma GmbH v.                          gives inaccurate information,
               Rhône-Poulenc Pharma GmbH (M
(Repackaging oftrade-markedproducts — Article 36 ofthe                — the new packaging clearly states who repackaged the
                           EC Treaty)                                     product and the name of the manufacturer in print such
                         ( 96/C 336/ 19 )                                 that a person with normal eyesight, exercising a normal
                                                                          degree of attentiveness, would be in a position to
                (Language of the case: German)                            understand; however, it is not necessary to indicate that
                                                                          the repackaging was carried out without the
                                                                          authorization of the trade-mark owner,
(Provisional translation; the definitive translation will be
          published in the European Court Reports)                    — the presentation ofthe repackaged product is not such as
                                                                          to be liable to damage the reputation of the trade mark
In Case C-232/94 , reference to the Court pursuant to                     and of its owner; thus, the packaging must not be
Article 177 of the EC Treaty by the Oberlandesgericht Koln                defective, of poor quality, or untidy; and
( Higher Regional Court, Cologne, Germany ) for a
preliminary ruling in the proceedings pending before that             — the importer gives notice to the trade-mark owner before
court between MPA Pharma GmbH and Rhone-Poulenc                           the repackaged product is put on sale, and, on demand,
Pharma GmbH on the interpretation of Article 36 of the EC                 supplies him with a specimen of the repackaged
Treaty in relation to trade marks, the Court, composed of:                product.
G. C. Rodriguez Iglesias, President, C. N. Kakouris, J. -P.
Puissochet and G. Hirsch ( Presidents of Chambers ), G. F.            (') OJ No C 275 , 1 . 10 . 1994 .
Mancini , J. C. Moitinho de Almeida , C. Gulmann
( Rapporteur ), P. Jann and H. Ragnemalm, Judges;
Advocate-General : F. G. Jacobs, for the Registrar: H. von
Holstein, Deputy Registrar, L. Hewlett, Administrator, has
given a judgment on 11 July 1996 in which it rules :
                                                                                    JUDGMENT OF THE COURT
Article 36 of the EC Treaty must be interpreted as meaning                                    ( Fifth Chamber)
that a trade-mark owner may rely on hi$ rights as owner to
prevent an importer from marketing a pharmaceutical                                           of 11 July 1996
product which was put on the market in another Member                 in Case C-25/95 ( reference for a preliminary ruling from the
State by the owner or with his consent, where that importer           Hessischer Verwaltungsgerichtshof): Siegfried Otte v.
has repackaged the product and reaffixed the trade mark                               Federal Republic of Germany
thereto, unless:
                                                                      (Social security for migrant workers — Community rules —
— it is established that reliance on trade mark rights by the         Matters covered — Benefit paid to workers in the coal
    owner in order to oppose the marketing of repackaged              industry who have passed a specified age-limit and have
    products under that trade mark would contribute to the            been laid off as a result of closure of the undertaking
    artificial partitioning of the markets between Member             employing them or rationalization measures (adaptation
    States; such is the case, in particular, where the owner          allowance) — Benefit paid by way ofsubsidy — Method of
    has put an identical pharmaceutical product on the                calculating benefits — Taking into account of a pension
    market in several Member States in various forms of              paid under the legislation of another Member State —
    packaging, and the repackaging carried out by the                                     Conditions and limits)
    importer is necessary in order to market the product in                                     ( 96/C 336/20 )
    the Member State of importation, and also carried out in
    such conditions that the original condition of the                               (Language of the case: German)
    product cannot be affected by it; that requirement does
    not, however, imply that it must be established that the
    trade-mark owner deliberately sought to partition the             (Provisional translation; the definitive translation will be
    markets between Member States,                                            published in the European Court Reports)
— it is shown that the repackaging cannot affect the                  In Case C-25/95 : reference to the Court pursuant to
    original condition of the product inside the packaging;           Article 177 of the EC Treaty from the Hessischer
    such is the case, in particular, where the importer has           Verwaltungsgerichtshof ( Germany ) for a preliminary ruling
    merely carried out operations involving no risk of the            in the proceedings pending before that court between
    product being affected, such as, for example, the                 Siegfried Otte and Federal Republic of Germany — on the
    removal of blister packs from their original external             interpretation of Articles 4(1 ) and ( 2 ), 12 ( 2 ) and 46 of
    packaging and their insertion into new external                   Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on
    packaging, or the addition to the packaging of new user           the application of social security schemes to employed
    instructions or information; it is for the national court to      persons, to self-employed persons and to members of their
    verify that the original condition of the product inside          families moving within the Community, as amended and