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Behaviour by Trade Mark Owner No Defence

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

When a supplier sought to protect its trade mark against a company that was breaching its right to control the first sale of its products in Europe, the claim was disputed on the ground that the trade mark owner had engaged in activity which had unlawfully restricted the free movement of its branded goods after they had been first marketed.

The dispute concerned computer hardware that was ‘grey imported’ into Europe by a dealer without the consent of the manufacturer, which had never sold the goods in question in Europe.

The question was whether the manufacturer could enforce its right to control the ‘first marketing’ of the goods in Europe in these circumstances.

The Supreme Court accepted that it could, regardless of the fact that aspects of the manufacturer’s behaviour might arguably be contrary to competition law.

If you are considering bringing in branded goods to the European Union for resale, take advice first.

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