||All England Reporter
|| All ER (D) 495 (Jul)
|| EWHC 1556 (Ch)
||Henry Carr QC, David Anderson QC and Hugo Cuddigan (instructed by Baker & McKenzie) for the claimants.
||Geoffrey Hobbs QC and Philip Roberts (instructed by K Legal for the first and second defendants and Nabarro Nathanson for the third defendant) for the defendants.
||31 July 2002
European Community - Trade Marks - Exhaustion - Free movement of goods - European Court of Justice ruling that consent of trade mark proprietor required to import goods into European Economic Area which were marketed outside European Economic Area - Whether interpretation of Court infringing basic principles of Community law - First Council Directive (EEC) 89/104, art 7 - Articles 28, 29, 30 EC.
The exercise of a trade mark right in order to prevent the marketing of products coming from a third country under an identical mark, even if that constituted a measure having an effect equivalent to a quantitative restriction, did not affect the free market movement of goods between Member States and thus did not come under the prohibitions set out in art30 EC. That principle contained the European Court of Justice's interpretation of the Treaty provisions that provided the context for art7 of the First Council Directive (EEC) 89-104 of 21 December 1988 to approximate laws of Member States relating to trade marks. Accordingly, the defendants contention that ECJ's interpretation of art7 was invalid because it infringed the principle of the free movement of goods was without substance.
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