The Court of Justice of the European Communities has encountered a pivotal situation involving the clash between trademark rights and the unhindered movement of goods, and it has leaned in favor of the latter. This choice implies that parallel importers are now granted the right to repack, re-label, and even rebrand pharmaceuticals in accordance with the importing country, despite existing trademark rights. Consequently, while the scope of trademark rights is narrowing, the privileges extended to parallel importers are expanding. This study aims to delve into the possibility of establishing boundaries on this subject.
An article in the Intellectual Property Rights and Competition Journal of Ankara Bar Association’s 2009/2 issue succinctly outlines the following aspects:
Trademark rights serve to prevent the unauthorized utilization of a registered trademark on alternative products or packaging, altering the packaging of original goods, and importing products that are distributed in other countries by the trademark holder without their consent. In the European Union, the “exhaustion principle” has been embraced, and actions that impede the circulation of goods introduced to the Community market between member states have been proscribed by ATAD. Notably, within the pharmaceutical sector, manufacturers have endeavored to evade the prohibition on parallel imports by presenting their products under diverse brands and packaging in various member states.
Upon scrutinizing a sequence of determinations rendered by ATAD, it becomes evident that the utilization of trademark rights by right holders is confined within the framework of Article 28 of the EC Treaty. Furthermore, it is observed that these rights holders are stripped of their authority to forestall parallel imports of their products when the packaging and labels are altered by third parties. Thus, the principle of unrestricted movement holds sway over industrial property rights. Within this context, the core subject of contention revolves around discerning the constraints that can be imposed on the application of trademark rights to curtail trade among member states. Unless the EU orchestrates and standardizes the social policies of its member states, the perpetuation of this ambiguity appears inevitable.
Type of the Work : Article
Language : Turkish
Copyright : Ankara Bar.
Citation : EKDİ, Barış (2009) “AB’de İlaçların Yeniden Paketlenmesi ve Paralel İthalatı Açısından Sınırlar”, Ankara Barosu FMR Dergisi, Sayı:2009/2.
