Acórdão do Tribunal da EFTA
Processo E-3/02

Judgment of the Court

of 8 July 2003

in Case E-3/02 between: Paranova AS and Merck & Co., Inc. and Others

(2003/C 222/10)

Parallel imports - Article 72 of Directive 89/104/EEC - Use of coloured stripes on the parallel importer's repackaging design - Legitimate reasons

In Case E-3/02, between: Paranova AS and Merck & Co., Inc. and Others - Request to the Court by Norges Høyesterett (the Supreme Court of Norway) for an Advisory Opinion on the interpretation of Article 7(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ L 40, 11.2.1989, p. 1), as referred to in point 4 of Annex XVII to the EEA Agreement, the Court, composed of: Carl Baudenbacher (Judge-Rapporteur), President, Per Tresselt and Thorgeir Örlygsson, Judges, gave judgment of 8 July 2003, the operative part of which is as follows:

1. "Legitimate reasons" within the meaning of Article 7(2) of the Directive to oppose the further commercialisation of repackaged pharmaceutical products may exist where the packaging has been equipped with coloured stripes along the edges if this is liable to damage the reputation of the trade mark. Whether this is the case, is to be answered by the national court on the basis of the relevant facts.

2. The question of whether "legitimate reasons" exist if coloured stripes are used in the described presentation of a product cannot mechanically be assessed on the basis of the necessity test as developed by the Court of Justice of the European Communities.