The Pharmaceutical Journal
Vol 268 No 7196 p597-604
4 May 2002

This article
Reprint
Photocopy

News summary

Related websites
European Court of Justice (more)

Importers can repack products

Trade mark holders cannot legitimately object to products being repackaged by parallel importers if that makes it impossible for importers to market their goods, the European Court of Justice (ECJ) has ruled.

Giving judgment against Merck Sharp & Dohme, Boehringer Ingelheim, GlaxoSmithKline and Eli Lilly, the court said that account had to be taken of the circumstances prevailing in importing countries which might make repackaging, rather than over-labelling, objectively necessary. This meant that repackaging was needed if there was strong resistance by a significant proportion of local consumers to relabelled boxes. Repackaging was not justified in order to gain commercial advantage. It was for national courts to rule in individual cases whether repackaging was being done for commercial purposes or to gain effective market access.

Other impediments to effective access could be national rules or practices, such as reimbursement which was dependent on pack size or well-established prescribing practices based on standard pack sizes.

The only requirement placed on importers was to notify trade mark holders of their intent to repackage and to allow "reasonable time" for the trade mark holder to object. Again, it was for national courts to rule in individual cases whether the time was reasonable. The ECJ suggested that 15 days would be reasonable if the importer provided a sample of the proposed packaging at the same time as notification.