Trade dress victory for re-packagers

Related tags Supreme court of the united states International trade European union

In Norway, the Supreme Court has concluded that the packaging
designused by the local subsidiary of parallel importer Paranova
does notinfringe Merck & Co's trademarks.

The news comes at the same time as a UK report - the subject of​'s lead article today - has concluded that parallel traders should overbox products, rather than open and discard the original and re-box it.

Merck had argued that the shape and the position of the stripes gave an impression of a specific product range, and were not necessary to achieve market access, but the court ruled that because the parallel importer represents the principle of free movement of goods, it must not only be able to market repackaged stock, but also given a reasonable possibility to differentiate its goods to the public.

Don Macarthur, secretary general of the European Association of Euro-Pharmaceutical Companies (EAEPC), the trade body representing national associations and individual companies engaged in parallel trade and the distribution of pharmaceuticals, said that it is important for re-packagers to be able to use markings on products to differentiate them and help avoid patient medication errors.

He pointed out that some parallel traders in Scandinavia have been forced to use plain black lettering on a plain white box, but this presents obvious identification problems. Re-packagers should be able to use colour schemes to provide a visual aid to patients and pharmacists in selecting the correct dose or presentation of a product, he said.

Paranova's legal counsel, Kim Jensen, was quick to point out the far-reaching significance of the finding. As this decision is based on an interpretation of the European Union trademark directive, and a key legal argument by pharmaceutical manufacturers has been that the design of repackaging infringes the reaffixed trademark, this judgement is a major victory that willinfluence most of the pending cases concerning parallel trade, he said.

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