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Giove, Luca --- "Controlling Third Party Use at the Border" [2006] ELECD 235; in Phillips, Jeremy (ed), "Trade Marks at the Limit" (Edward Elgar Publishing, 2006)

Book Title: Trade Marks at the Limit

Editor(s): Phillips, Jeremy

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845427382

Section: Chapter 7

Section Title: Controlling Third Party Use at the Border

Author(s): Giove, Luca

Number of pages: 13

Extract:

7. Controlling third party use at the
border
Luca Giove

1. INTRODUCTION
Multinational companies seek to protect their business by preventing the
parallel importation of their goods from countries where the goods are
released in the market at lower prices (sometimes being of lower quality).
Such protection is sought through trade mark law and in particular through
infringement actions against parallel importers. Within the European
Economic Area (EEA) this right is removed, as a result of the combination
of the two principles of exhaustion and the single market. However, trade
mark holders can block at the borders of the EEA the parallel importation of
goods from countries elsewhere in the world by virtue of trade mark protec-
tion.1
Parallel importation, a concept well known to IP lawyers, is subject to a
number of decisions both at European Court of Justice (ECJ) and national
level, as well as to academic debate. However there are grey areas which still
require further exploration. In particular there are commercial activities
carried out by third parties, which are similar to but do not fall within the
scope of the traditional definition of parallel importation and the lawfulness of
which is uncertain. These areas include the mere transit of, or transit trade (that
is transactions in non-Community goods which have not completed import
formalities and have not therefore been formally imported into the
Community) in genuine branded non-Community goods in the EEA, as well
as collateral activities such as warehousing, when their final ...