Luxembourg, 20/11/2001 (Agence Europe) - In a press release the European Court of Justice reports that it has passed judgement in the Joined Cases "Zino Davidoff" and "Levi Strauss/Tesco" concerning whether a trademark proprietor may oppose the sale in the United Kingdom of toiletries (Davidoff) and jeans (Levis) from suppliers importing them into the EU from countries outside the EEA (European Economic Areas).
The Court considered the effect of the directive on trademarks allows the proprietor of the trademark to control the initial marketing in the EEA of goods bearing the mark.
The press release then points out that "consent, which is tantamount to the proprietor's renunciation of his exclusive right to prevent all third parties from importing goods bearing his trademark, constitutes the decisive factor in the extinction of that right". "in view of its serious effect in extinguishing the exclusive rights of the proprietor of the trademark, consent must be expressed in such a way that an intention to renounce those rights is unequivocally demonstrated. This intention will normally be gathered from an express statement of consent. Nevertheless, it may in some cases be inferred from facts and circumstances prior to, simultaneous with or subsequent to the placing of the goods on the market outside the EEA which unequivocally demonstrate that the proprietor has renounced his rights".
The Court considered whether implied consent might be inferred from the mere silence of a trademark proprietor. Consent must be expressed positively; the factors taken into consideration in finding implied consent must unequivocally demonstrate that the trademark proprietor has renounced any intention to enforce his exclusive rights. "It follows that it is not for the trademark proprietor to demonstrate absence of consent, but rather for the trader alleging consent to prove it", explains the press release.