Hvorvidt ompakningen vil kunne berøre varernes oprindelige tilstand eller på anden måde skade varemærkets omdømme, er i det væsentlige et spørgsmål om de faktiske omstændigheder, som den nationale retsinstans skal fastslå i overensstemmelse med sine egne nationale bestemmelser vedrørende processuelle spørgsmål som f.eks. bevisbyrden, beviskravet og de bevismidler, der kan anvendes. Disse bestemmelser må ikke behandle krav, der hviler på fællesskabsretten, mindre fordelagtigt end krav i henhold til national ret og må ikke gøre det urimeligt vanskeligt at gennemføre rettigheder, der følger af fællesskabsretten.
^Article 36 of the EC Treaty must be interpreted as meaning that a trade mark owner may rely upon his rights as owner to prevent an importer from marketing a pharmaceutical product which was put on the market in another Member State by the owner or with his consent, where that importer has repackaged the product and reaffixed the trade mark thereto, unless: it is established that reliance on trade mark rights by the owner in order to oppose the marketing of repackaged products under that trade mark would contribute to the artificial partitioning of the markets between Member States; such is the case, in particular, where the owner has put an identical pharmaceutical product on the market in several Member Stales in various forms of packaging, and the repackaging carried out by the importer is necessary in order to market the product in the Member State of importation, and also carried out in such conditions that the original condition of the 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 markets between Member Slates; it is shown thai the repackaging cannot affect the original condition of the product inside the packaging; such is the case, in particular, where the importer has merely carried out operations involving no risk of the product being affected, such as, for example, the removal of blister packs from their original external packaging and their insertion into new external packaging, or the addition to the packaging of new user instructions or information; it is for the national court to verify that the original condition of the product inside the packaging is not indirectly affected, for example, by the fact that the external or inner packaging of the repackaged product or new user instructions or information omits certain important information or gives inaccurate information; the new packaging clearly states who repackaged the product and the name of the manufacturer in print such that a person with normal eyesight, exercising a normal degree of attentiveness, would he in a position to understand; however, it is not necessary to indicate that the repackaging was carried out without the authorization of the trade mark owner, the presentation of the repackaged product is not such as to be liable to damage the reputation of the trade mark and of Us owner, thus, the packaging must not be defective, of poor quality, or untidy; and the importer gives notice to the trade mark owner before the repackaged product is put on sale, and, on demand, supplies him with a specimen of the repackaged product.»