In a judgment returned on Thursday 17 May in case C-642/16, the Court of Justice of the European Union considered that a company wishing to reimport a medical product to a member state could add its contact details to the product labelling if the reference to the original trademark is maintained, without having to apply to the company for its authorisation.
The company Lohmann & Rauscher International holds the trademark Debrisoft, which is registered for bandages. The company Junek Euro-Vertrieb, which is based in Austria, sells, in Germany, bandages produced and exported to Austria from Germany by Lohmann Rauscher International. On the bandage boxes, Junek Euro-Vertrieb adds a label stating its contact details, ensuring that this label does not obscure the Lohmann Rauscher International trademark.
As it had not been notified that the product was being reimported to Germany, Lohmann Rauscher International considered that this practice on the part of Junek Euro-Vertrieb constituted a violation of its Debrisoft trademark and referred the matter to the German courts to stop the Austrian company from using its trademark and to withdraw the medical products in question from the market and destroy them.
The German court then asked the CJEU for a preliminary ruling as to whether this practice was compatible with EU law.
The court firstly recalls that the repackaging of a product by a third party without the authorisation of the holder of the trademark is likely to create risks over guarantees of the provenance of the product, which is the subject of the trademark. They therefore considered whether, in this case, repackaging had taken place.
The Court considers that the packaging of the product was not modified, as the original presentation of the packaging was affected only by the addition of the label featuring the contact details of Junek Euro-Vertrieb, which did not conceal the original trademark. It therefore considers that there was no repackaging and that the specific subject of the Lohmann Rauscher International trademark was not affected; the commercial practice is therefore compatible with EU law. (Original version in French by Lucas Tripoteau)