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No surprises in repackaging ruling

3 August 2011

The European Court of Justice has previously held that trade mark proprietors cannot object to pharmaceuticals being repackaged if repackaging is necessary to market the product, it does not affect the products’ condition, the packaging clearly identifies the repackager, is not defective, and the importer gives notice to the trade mark proprietor.

Merck brought two cases complaining that various companies had infringed its trade marks by selling repackaged products which stated the repackaging had been carried out by one company when it had actually been carried out by another company in the same group.

Last week the court held that Merck’s rights were sufficiently protected by the companies marketing the pharmaceuticals putting their name on the packaging and therefore there was no trade mark infringement.

It is also worth noting the court’s previous comments that derogations from free movement of goods will only be permitted to the extent necessary to protect the specific subject matter and the essential function of a trade mark.

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