Van Doren + Q. GmbH v Lifestyle sports + sportswear Handelsgesellschaft mbH and Michael Orth.
Date: 2003-04-08
25.  In Articles 5 and 7 of the Directive the Community legislature laid down the rule of Community exhaustion, that is to say, the rule that the rights conferred by a trade mark do not entitle the proprietor to prohibit use of the mark in relation to goods bearing that mark which have been placed on the market in the EEA by him or with his consent.  In adopting those provisions, the Community legislature did not leave it open to the Member States to provide in their domestic law for exhaustion of the rights conferred by a trade mark in respect of products placed on the market in third countries (Silhouette International Schmied  , cited above, paragraph 26, and Joined Cases C-414/99 to C-416/99   Zino Davidoff and Levi Strauss   [2001] ECR I-8691, paragraph 32).
26.  The effect of the Directive is therefore to limit exhaustion of the rights conferred on the proprietor of a trade mark to cases where goods have been put on the market in the EEA and to allow the proprietor to market his products outside that area without exhausting his rights within the EEA.  By making it clear that the placing of goods on the market outside the EEA does not exhaust the proprietor's right to oppose the importation of those goods without his consent, the Community legislature has allowed the proprietor of the trade mark to control the initial marketing in the EEA of goods bearing the mark (Sebago and Maison Dubois  , cited above, paragraph 21, and   Zino Davidoff and Levi Strauss  , cited above, paragraph 33).
32.  Articles 5 to 7 of the Directive embody a complete harmonisation of the rules relating to the rights conferred by a trade mark and accordingly define the rights of proprietors of trade marks in the Community (Zino Davidoff and Levi Strauss  , paragraph 39).
33.  Article 5 of the Directive confers on the trade mark proprietor exclusive rights entitling him,   inter alia  , to prevent all third parties not having his consent from importing goods bearing the mark.  Article 7(1) contains an exception to that rule in that it provides that the trade mark proprietor's rights are exhausted where goods have been put on the market in the EEA by the proprietor or with his consent (see   Zino Davidoff and Levi Strauss  , paragraph 40).
34.  It therefore appears that the extinction of the exclusive right results either from the consent of the proprietor, given either expressly or impliedly, to goods being placed on the market within the EEA, or from their being placed on the market by the proprietor himself.  The consent of the proprietor or the placing of goods on the market within the EEA by the proprietor, which are tantamount to renunciation of his exclusive right, each constitute decisive factors in the extinction of that right (see, as regards consent,   Zino Davidoff and Levi Strauss  , paragraph 41).
37.  However, the requirements deriving from the protection of the free movement of goods enshrined,   inter alia  , in Articles 28 EC and 30 EC may mean that that rule of evidence needs to be qualified.
38.  This must be so where that rule would allow the proprietor of the trade mark to partition national markets and thus assist the maintenance of price differences which may exist between Member States (see, to that effect,   inter alia  , Case C-349/95   Loendersloot   [1997] ECR I-6227, paragraph 23).
41.  Accordingly, where a third party against whom proceedings have been brought succeeds in establishing that there is a real risk of partitioning of national markets if he himself bears the burden of proving that the goods were placed on the market in the EEA by the proprietor of the trade mark or with his consent, it is for the proprietor of the trade mark to establish that the products were initially placed on the market outside the EEA by him or with his consent.  If such evidence is adduced, it is for the third party to prove the consent of the trade mark proprietor to subsequent marketing of the products in the EEA (see   Zino Davidoff and Levi Strauss  , paragraph 54).