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Abstract:

Picture this: company A, a multinational pharmaceutical concern, owns a registered trademark in territory X. In this territory, one of the divisions of company A markets a pharmaceutical product under the registered sign. In territory Y, another division commercialises an unbranded version of this product at a significantly lower price. Company B smells an opportunity. They purchase the unbranded version of the product in territory X, import it into territory Y, repackage it, rebrand it under the registered sign, and sell it for a price lower than that charged by company A, but still with a comfortable profit margin. Does this constitute trademark infringement? The question may seem simple enough, but answering it requires a foray into the complex, multifaceted doctrine of trademark exhaustion, all the while taking due account of internal market considerations. On the basis of two analogue fact sets, the Brussels Court of Appeal filed a preliminary reference on this issue with the European Court of Justice (ECJ) in May 2020. The ongoing waiting game for the Opinion of Advocate General Szpunar and the ensuing ECJ judgment provides us with the perfect opportunity to delve into the debacle.