ECJ The essential function of a trade mark is to guarantee the identity of the origin of the marked product to the consumer or final user by enabling him to distinguish without any possibility of confusion between that product and products which have another origin. This guarantee of origin means that the consumer or final user may be certain that a trade-marked product which is offered to him has not been subject at a previous stage in the marketing process to interference by a third person, without the authorization of the proprietor of the trade mark, affecting the original condition of the product. Therefore, the proprietor of a trade-mark right may not rely on that right in order to prevent an importer from marketing a pharmaceutical product manufactured in another member state by the subsidiary of the proprietor and bearing the latter ‘ s trade mark with his consent, where the importer, in re-packaging the product, confined himself to replacing the external wrapping without touching the internal packaging and made the trade mark affixed by the manufacturer to the internal packaging visible through the new external wrapping, at the same time clearly indicating on the external wrapping that the product was manufactured by the subsidiary of the proprietor and re-packaged by the importer.
As to the exhaustion of rights in the field of trade marks: ‘regard must be had to the main function of the trade mark which is to give the consumer or final buyer a guarantee of the identity of origin of the marked product, by enabling him to distinguish this product, with no risk of confusion, from products of a different origin. This guarantee of origin implies that the consumer or final buyer can be sure that any marked product offered to him has not been interfered with by a third party, at an earlier stage of marketing, in any way which has affected the original condition of the product, without the consent of the trade mark owner.’
Citations:
R-1/81, [1981] EUECJ R-1/81, 1 CMLR 406
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Cited by:
Cited – Consorzio Del Prosciutto Di Parma v Asda Stores Limited and others HL 8-Feb-2001
The name ‘Parma Ham’ was controlled as to its use under Italian law, and the associated mark, the ‘corona ducale’, was to be applied to a sale of Parma Ham, including any packaging. Proper Parma Ham was imported and resold through the defendant’s . .
Lists of cited by and citing cases may be incomplete.
European, Intellectual Property
Updated: 21 June 2022; Ref: scu.215028