 Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 28 journals)
|
|
|
- “Exclusionary Abuse”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: In the case of exclusionary conduct consisting of price discrimination, such as that in the case at hand concerning a telecommunications operator in a dominant position in the wholesale markets for call termination on mobile networks, the compensation for damage due to the competitor who is the victim of the abuse includes the loss resulting from the absorption of the higher cost incurred by that competitor for access to termination. In the absence of other factors representing the damage, it can be liquidated commensurately.
PubDate: 2023-03-29
- “Obligatory ‘Appropriate’ Remuneration for
Authors”-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: The disputed Order must be declared void solely to the extent that it does not state that authors who assign their exclusive rights for the exploitation of their works are entitled to receive appropriate remuneration, as such is contrary to the requirement imposed under the Directive on Copyright in the Digital Single Market, and notwithstanding that the Order states an author shall be entitled to receive additional remuneration when the proportionate remuneration originally agreed turns out to be disproportionately low.
PubDate: 2023-03-29
- “Repackaging of a Medicinal Product”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Article 21(a)(9) Pharmaceutical Law (PL) (concerning parallel import permission and the ability to place an imported product on the market under specific names), as a regulation of public law, does not constitute an autonomous legal basis to use a disputed trademark by any parallel importer. Article 21(a)(9) PL also will not affect the implementation of the BMS prerequisites, because it permits importers to mark drugs with commonly used or scientific names, trademarks or even their own names. The concept of “market access” does not mean “access to market position” and the principle of single market of the EU does not preclude granting protection to a trademark used by a manufacturer in the country of parallel import in a situation where the entity infringing the rights to this trademark is driven by its desire to achieve greater profits. Hence the condition of necessity of market access is satisfied when the regulations or practice in the country of import prevent imported products from being placed on that market in the same packaging as those in which they are placed on the market in the country of export. The possibility of exercising one’s trademark protection is not dependent on prior notification being sent to an infringer nor on objecting to the infringement in question. In general, actions allowed under Art. 155(1)–(2) Industrial Property Law (IPL) do not constitute an infringement of trademark protection, and thus cannot lead to an effective pursuit of protection under Art. 296 IPL. The possibility for an authorised entity to express objections referred to in Art. 155(3) IPL applies only to cases of exhaustion of protection at law. Repackaging of goods using a trademark with which they were marked in the country of export should be distinguished from repackaging and affixing products with a different mark in place of or next to the one used in the country of export.
PubDate: 2023-03-29
- “Grupo Editorial Patria”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: There is no exhaustive list that specifies what acts are deemed to be unfair competition. Any act involving industrial property that is performed in a business environment and is contrary to proper usage and practice shall be considered unfair. Article 259 of Decision 486 allows for other types of unfair competition to exist in connection with industrial property rights, in addition to those set out in it. Furthermore, other circumstances of unfair competition may exist that are unconnected with industrial property rights. The member countries of the Andean Community may have national legislation that defines types of unfair competition other than those under Arts. 259 and 262 of Decision 486, whether or not they are connected to industrial property rights. Some acts that are categorised as trade mark infringement may ultimately amount to unfair competition, thus it being necessary to differentiate the nature of the trade mark infringement from acts of unfair competition: Acts of unfair competition infringe the normal development of economic activity in the market, which causes actual or potential harm to the competitor or competitors, consumers and the general interest. Unfair competition harms the development of the market and the principle of good faith. Trade mark infringement is committed by the act, including acts of a preparatory nature, of using in one way or another a distinctive sign that is identical or similar to a registered or well-known (or renowned) trade mark, to the extent that it is possible for the perpetrator to ignore the existence of the owner of the registration and/or the trade mark registration. Trade mark infringement harms an industrial property right in the mind of the owner of the registration.
PubDate: 2023-03-29
- “DNS Block (DNS Sperre)”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: The rightholder has no other possibility within the meaning of Sec. 7(4), first sentence, of the Telemedia Act to remedy the infringement of its right if reasonable efforts to bring a claim against the parties who have committed the infringement themselves or contributed to it by providing services have failed or have no prospect of success. The access provider, which merely provides access to the internet in general, is only subsidiarily liable with respect to those participants who (like the operator of the website) have committed the infringement themselves or (like the host provider) have contributed to the infringement by providing services and are therefore significantly closer to the infringement of the right (continuation of Federal Supreme Court, decision of 26 November 2015 – I ZR 174/14, BGHZ 208, 82 [juris headnote 2 and paras. 82 et seq.] – Störerhaftung des Access-Providers [IIC – “Disturber Liability of an Access Provider”, 47:481–490 (2016), https://doi.org/10.1007/s40319-016-0478-5]; decision of 15 October 2020 – I ZR 13/19, GRUR 2021, 63 [juris paras. 27 and 31] = WRP 2021, 56 – Störerhaftung des Registrars). The limitation of the blocking claim under Sec. 7(4) of the Telemedia Act by the requirement of subsidiarity is in accordance with Art. 8(3) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (continuation of Federal Supreme Court, decision of 26 July 2018 – I ZR 64/17, GRUR 2018, 1044 [juris para. 58] = WRP 2018, 1202 – Dead Island). Which efforts to bring claims against the operator of a website and the host provider are reasonable is a question of the individual case. The rightholder is obligated within reasonable bounds to make inquiries to determine the primary targets of claims among the participants involved. As a rule, it is also reasonable for the rightholder to assert an extrajudicial claim against a known operator of the website or the host provider for removal of the copyright-infringing content. With regard to the judicial enforcement of claims for injunctive relief and information, however, it must be particularly taken into account that no measures may be imposed on the rightholder that lead to an unreasonable delay in the enforcement of its claim. However, the right holder must in principle initiate proceedings for interim relief against operators or host providers established within the European Union. In individual cases, efforts that are in principle reasonable may be dispensed with if they have no prospects of success for reasons to be shown by the claimant.
PubDate: 2023-03-29
- Departing Employees, Confidentiality Clauses and European Trade Secret
Protection-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract Departing employees are a classic problem in trade secret law. Employees who wish to set up on their own or accept a job offer from their principal’s competitor may often be tempted to take with them valuable and secret information from the existing principal’s business. The law should protect employers against this. On the other hand, employees have a legitimate interest in being able to change jobs, and trade secret law should not be so protective as to severely hamper labour mobility. According to leading scholars, Directive 2016/943 on the protection of trade secrets does not harmonise the legal protection of trade secrets vis-à-vis departing employees. This leaves room for national legislators and courts to develop the law on this important topic on their own. One might fear that this could lead to substantial legal differences within the European Economic Area. This article explores this question with a particular focus on many employers’ practice of including obligations of confidentiality in their employment contracts or entering into separate non-disclosure agreements with their employees. The author shares the view that the Directive, along with much of the national legislation that implements it, gives courts considerable freedom in how to solve the difficult cases of departing employees, including when the ex-employee is bound by post-employment confidentiality obligations. This is not, however, necessarily a threat to legal certainty, as national case-law prior to the Directive seems to have had many common traits. This could provide important guidelines as to how the relevant parties’ interests have to be safeguarded and balanced also under the Directive. The author has two main points on the substantive law: (1) an agreement that generally prohibits employees from disclosing or using “trade secrets”, “business information” or the like may be important – but not necessarily decisive – for establishing that the employer has taken “reasonable steps” to protect the information, as required by the Directive; (2) however, the concrete assessment of whether a former employee has violated such a contract should not differ much from an assessment of whether they would have violated trade secret law in the absence of such an agreement.
PubDate: 2023-03-29
- Correction to: “IFPI v. I&Q Group and Hellspy”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
PubDate: 2023-03-28
- Defining Trade Secrets in the United States: Past and Present Challenges
– A Way Forward'-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract When approaching an analysis of a particular area of law, one must initially locate and understand the definition of its core concept. Yet in trade secret law serious obstacles impede the process. Unlike other intellectual property (IP) regimes, such as copyright and patent law, the core concepts of which are subject to unitary definitions governed by international treaties or domestic statutes, the trade secret concept has received no parallel treatment and, until recently in the United States, remained mainly defined under common law. Subtle differences in the way trade secrets were judicially conceived often generated conflicts between courts, opening the door for the application of divergent rules on similar points. This confusing background prompted the individual U.S. jurisdictions to gradually orient towards implementing statutory provisions in defining trade secrets. Despite the fact that U.S. trade secret law has since seen several statutory interventions at state and federal level, the precise meaning and definitional parameters of the concept remain elusive. This paper probes the existing trade secret definitions applicable in the U.S. via analysis of the divergent sources of law that underscored their formulation from the past until the present and identifies the challenges pertinent to their application in practice. Its aim is to analyze and compare these legal sources: first, to determine whether the current definition for the concept of a trade secret is adequate, or whether perhaps the existence of the multi-tier system impedes a party’s ability to identify trade secrets in a cross-border context; and second, to investigate whether a unanimously accepted definition under a pre-emptive statute complementary to one under an elaborated internationally binding treaty might remedy this issue.
PubDate: 2023-03-28
- “Society of Composers, Authors and Music Publishers of Canada v.
Entertainment Software Association”-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: The Copyright Act does not require that users pay two royalties to access works online. The reading of Sec. 2.4(1.1) of the Copyright Act that is most consistent with its text, structure, purpose, and context is that Sec. 2.4(1.1) clarifies that (1) Sec. 3(1)(f) applies to on-demand streams, and (2) a work is performed as soon as it is made available for on-demand streaming. If a work is streamed or made available for on-demand streaming, the author’s performance right is engaged. If a work is downloaded, the author’s reproduction right is engaged. If a work is made available for downloading, the author’s right to authorize reproductions is engaged. If a work is downloaded or made available for downloading, Sec. 3(1)(f) is not engaged. If a work is made available for streaming and later streamed, Sec. 3(1)(f) is only engaged once.
PubDate: 2023-03-27
- “Unilever Italia Mkt. Operations”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Article 102 TFEU must be interpreted as meaning that the actions of distributors forming part of the distribution network for goods and services of a producer in a dominant position may be imputed to that producer if it is established that those actions were not adopted independently by those distributors, but form part of a policy that is decided unilaterally by that producer and implemented through those distributors. Article 102 TFEU must be interpreted as meaning that, where there are exclusivity clauses in distribution contracts, a competition authority is required, in order to find an abuse of a dominant position, to establish, in the light of all the relevant circumstances and in view of, where applicable, the economic analyses produced by the undertaking in a dominant position as regards the inability of the conduct at issue to exclude competitors that are as efficient as the dominant undertaking from the market, that those clauses are capable of restricting competition. The use of an ‘as efficient competitor’ test is optional. However, if the results of such a test are submitted by the undertaking concerned during the administrative procedure, the competition authority is required to assess the probative value of those results.
PubDate: 2023-03-23
- Digital Dominance and Social Media Platforms: Are Competition Authorities
Up to the Task'-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract Social media platforms, as a particular species of digital platforms offering multiple online services and electronic commerce opportunities, have been under increasing scrutiny by competition enforcement agencies in recent years for engaging in allegedly anticompetitive practices. These technology giants have also come under fire for their role in facilitating various anti-social practices that have sowed societal discord and conflict in many different jurisdictions. In this paper, we examine the reasons why undertakings operating in this particular sector of the digital economy have managed to acquire such an exceptional species of “digital dominance” that makes them particularly challenging targets for competition authorities to rein in using conventional competition law frameworks. We then argue that, in light of the conceptual and practical difficulties of relying on competition law enforcement as the primary mechanism to address the problems associated with the behaviour of social media platforms, policymakers should focus their attention instead on tailor-making sector-specific ex ante regulatory frameworks that are better equipped to address the different public and private interests that need to be balanced against each other when evaluating the conduct of these particular digital ecosystems.
PubDate: 2023-03-22
- “AdWords”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Article 43(5) of the Trade Mark Law, establishes a legal criterion which expressly states that proof is not required to impose compensation of 1% of turnover obtained with unlawfully branded goods or services. Advertising that does not fully enable the average internet user to determine whether the services included in the advertisement originate from the trade mark holder or an undertaking economically linked to it or whether, on the contrary, they originate from a third party, constitutes an unlawful trade mark use as it is done without the consent of its holder, to identify identical services, and thus undermining the function indicating the business origin of the services offered. In matters of compensation for damages, these are not presumed but must be proven by the party claiming them, both the existence and the amount unless their existence can be presumed when a situation occurs in which the damages are revealed as real and effective (ex re ipsa), so that there is no need for proof because it is incontestably proven by reality. When it is very difficult to quantify the economic damage, either by determining the direct damage to the plaintiff due to the loss of earnings or the profit obtained by the infringer or through a hypothetical royalty (Art. 43(2) of the Trade Mark Law), Art. 43(5) of the Trade Mark Law allows the holder of the infringed trade mark to request 1% of the turnover obtained with the services identified with the infringed trade mark. The turnover does not refer to the services rendered as a result of the trade mark infringement (here: the services invoiced to those who came to Vitaldent because of the advertisement, which constituted an infringement of the defendant’s trade mark), but rather to all the unlawfully branded services (here: all those which were advertised through the infringement of the applicant’s trade mark – implants, orthodontics, paediatric dentistry and cosmetic dentistry), without it being necessary to distinguish which were provided as a result of the advertisement and which were not.
PubDate: 2023-03-20
- “Nova Chemicals Corp. v. Dow Chemical Co.”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: When a patentee chooses an accounting of profits as a remedy for patent infringement, the infringer must disgorge all the profits they gained that are causally attributable to the invention. This may involve consideration of the hypothetical profits that an infringer could have earned by selling a non-infringing option. Springboard profits may also be available. Whether there is a non-infringing option is a question of fact. There are no strict rules around this factual exercise, and the non-infringing option need not be a strict market substitute for the patented product. The onus is on the infringer to adduce sufficient evidence to satisfy the court that the profits from its infringing product arose by virtue of features other than the patentee’s invention and that there is a non-infringing option that can help the courts isolate this value. Springboard profits are legally permissible. An accounting of profits requires that the infringer disgorge all profits causally attributable to infringement of the invention, regardless of when the profits materialize, including profits an infringer earns because of an accelerated entry into the market. Failing to disgorge those profits would leave gains that are causally attributable to infringement of the invention in the hands of the infringer and would be unfair to third parties that waited for patent expiry to compete with the patentee.
PubDate: 2023-03-13
- “Alibaba”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: When a network service provider becomes aware that a network user has infringed a party’s civil rights while using its network services and fails to take necessary measures, the network user and the network service provider shall be jointly and severally liable for infringement. The standards imposed on a valid notice vary according to the type of patent rights, the nature of the platform and the operator of an e-commerce platform. For notices involving patent rights, under the framework of platform governance rules, valid notices may include documents such as comparison charts in which technical or design features are listed, evaluation reports for utility model or design patent right, etc. As long as the notice contains basic information of the rights holder, proof of the rights, information that could accurately locate the allegedly infringing goods or services, preliminary evidence of infringement and specific measures the e-commerce platform needs to take, an e-commerce platform operator must fulfill its obligation to forward the notice without reviewing the preliminary evidence of infringement. Forwarding a notice to an accused party is the minimum obligation of an e-commerce platform operator, who shall not claim vice versa that, by forwarding a notice, it has taken necessary measures that are required by law. Whether an e-commerce platform operator is required to take further necessary measures after the notice is forwarded is subject to the content of the notice. It is for an e-commerce platform operator to decide, upon receipt of a valid notice (trigger for necessary measures), what necessary measures are to be taken according to the situation, depending on the type of network service, the nature of the (intellectual property) rights, and the infringement activities, etc. Deleting and disconnecting links is one of the necessary measures. Although e-commerce platform operators are not liable for infringements that are beyond their supervisory capabilities, they shall not remain passive or take no action by citing reasons such as that patent infringement cases are difficult to determine and that there are cases of malicious complaints. The action of removing products initiated by an operator on the platform shall not automatically be deemed as an effective measure taken by an e-commerce platform operator.
PubDate: 2023-03-13
- Overview of United Kingdom Trade Mark, Design and Copyright Cases 2022
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract A number of interesting cases involving wide-ranging issues in the intellectual property areas were decided in the UK in 2022. The latest in the saga between Nestle and Cadbury was handed down in Société des Produits Nestlé S.A. v. Cadbury UK Limited. This case concerned the registrability of the colour purple. Also on registrability, we had the decision in Husqvarna Aktiebolag v. UKIPO. This involved the registrability of a 3D trade mark, and the uncertainties surrounding this continue to linger. Moreover, the UKIPO Tribunal decision in Industria De Diseno Textil v. Amber Kotrri was straightforward enough from a factual point of view but garnered a host of publicity due to the PR efforts of one of the parties. It concerned an opposition based on likelihood of confusion and reputation grounds, but the result may be surprising to some readers. ABP Technology Ltd v. Voyetra Turtle Beach, Inc. & Turtle Beach Europe Ltd was particularly interesting from a procedural point of view, and parties are reminded that their litigation strategy can be put to scrutiny. The importance of evidence, and in particular, specific and tailored evidence to a case, was made clear in DC Comics (Partnership) v. Unilever Global IP Limited. Also on evidence, Urbanbubble Ltd & Ors v. Urban Evolution Property Management Ltd (“UEPM”) & Ors reminds readers that evidence of confusion will not always lead to a finding of infringement or passing off because all the factors will need to be considered. Nonetheless, Match Group v. Muzmatch confirms that the absence of actual confusion is also not decisive in the likelihood of confusion assessment. Goodwill, especially in the case of a music band which then later splits, was considered in Alan Williams Entertainments Ltd and ANOR v. Clarke and Ors. This was a passing off case, with a claim for bad faith in a trade mark application. Though the case is factually complex, the resulting decision is a good reminder to all in the music and performing arts industries. In a similar vein, in Shazam Productions Ltd v. Only Fools the Dining Experience Ltd, the courts considered whether copyright and actionable goodwill could subsist in relation to a television series.
PubDate: 2023-03-13
- United Kingdom Patent Decisions 2022
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract This report highlights a selection of the most important UK patent decisions from 2022, including: five Court of Appeal judgments (one relating to determining what constitutes an exclusive licensee, two dealing with permission to appeal and the appeal of a divisional patent validity challenge, one dealing with Arrow declaratory relief, and one dealing with the appropriate relief after a finding of standard essential patent (SEP) validity and infringement), and seven High Court judgments (one concerning a preliminary issues trial, one concerning divisional patent validity, one concerning plausibility, one considering an application for interim injunctive relief, one considering an application for Arrow declaratory relief, one looking at unjustified threats, and one looking at an expedition application relating to an infringement trial).
PubDate: 2023-03-07
- Bryan Mercurio and Ronald Yu: Regulating Cross-Border Data Flows –
Issues, Challenges and Impact-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
PubDate: 2023-03-02
- New U.S. Law Authorizes Presidential Sanctions for Trade Secret Theft
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
PubDate: 2023-02-22
- “Novartis Pharma”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Article 9(2) and Article 15 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark must be interpreted as meaning that the proprietor of an EU trade mark is not entitled to oppose the marketing by a parallel importer of a repackaged medicinal product in a new outer packaging bearing that mark, where the replacement of the anti-tampering device of the original outer packaging of that medicinal product carried out in accordance with Article 47a(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2012/26/EU of the European Parliament and of the Council of 25 October 2012, would leave visible traces of opening on that packaging and where those traces would cause such strong resistance on the part of a significant proportion of consumers on the market of the Member State of importation or on a substantial part of that market to medicinal products repackaged in that way that it would constitute an obstacle to effective access to that market, which must be established on a case-by-case basis. Article 5(3) of Commission Delegated Regulation (EU) 2016/161 of 2 October 2015 supplementing Directive 2001/83 must be interpreted as not precluding the barcode containing the unique identifier referred to in Article 3(2)(a) of that delegated regulation from being affixed to the outer packaging of the medicinal product by means of an adhesive label, provided that that label cannot be removed without being damaged and that, in particular, the barcode remains perfectly readable throughout the supply chain and throughout the entire period referred to in Article 6 of that delegated regulation.
PubDate: 2023-02-21
- “Bayer Intellectual Property”
-
Free pre-print version: Loading...
Rate this result:
What is this?
Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Article 47a of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2012/26/EU of the European Parliament and of the Council of 25 October 2012, must be interpreted as meaning that provided that all the requirements referred to in that article are satisfied, repackaging in new packaging and relabelling of medicinal products imported in parallel constitute equivalent forms of repackaging as regards the efficacy of the safety features referred to in Article 54(o) of that directive, as amended by Directive 2012/26, without one prevailing over the other. Article 10(2) and Article 15 of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the trade mark proprietor is entitled to oppose the marketing, by a parallel importer, of a medicinal product repackaged in new outer packaging to which that trade mark is affixed where it is objectively possible to relabel the medicinal product concerned in compliance with the requirements provided for in Article 47a of Directive 2001/83, as amended by Directive 2012/26, and where the medicinal product thus relabelled could actually access the market of the Member State of importation. Article 10(2) and Article 15 of Directive 2015/2436 must be interpreted as meaning that the trade mark proprietor is entitled to oppose the marketing, by a parallel importer, of a medicinal product repackaged in new outer packaging to which that trade mark is affixed, where the visible traces of opening of the original outer packaging which, where applicable, would result from relabelling of that medicinal product would be clearly attributable to the repackaging thus carried out by that parallel importer, unless those traces give rise, on the market of the Member State of importation or on a significant part of that market, to such strong resistance on the part of a significant proportion of consumers to medicinal products repackaged in that way as to constitute a barrier to effective access to that market, which must be established on a case-by-case basis.
PubDate: 2023-02-21
|
Hybrid journal (It can contain Open Access articles)
