European Court rules on unauthorised re-sale of "tester" perfume bottles

11-Jun-2010  |  Consumer Brands, Trade Marks & Designs


The Court of Justice of the European Union (CJEU) has ruled that the supply to a third party of branded "tester" goods which are clearly not meant for onward sale does not exhaust EU trade mark rights in those goods. This is good news for brand owners seeking to prevent and obtain compensation for onward sales of such products in the EEA. The decision turned on the extent of consent expressly or impliedly given by the trade mark owner to any further dealing. In this case, the brand owner had:

  • merely supplied, not sold, the goods,
  • this had happened in Singapore, i.e. outside the EEA, and
  • the restrictions were emphatically clear (from the "Demonstration" and "Not for Sale" labels).

As a result, the conclusion that EU trade mark rights are not thereby exhausted comes as no real surprise, notwithstanding the German first instance decision in this case. The CJEU judgment is deliberately confined and yet it has potential relevance to all first supplies by a brand owner who seeks to prevent or limit further unrestricted resale within the EEA.

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Lawyers Roland Mallinson, Thomas Raab, Adam Rendle