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Trademark rights are not exhausted in perfume testers – European court decision

 
Rights in a trade mark to sue for infringement are exhausted or no longer enforceable where a trademarked goods are put on the market in the EEA by the trade mark proprietor or with his consent, for example, through licensing. Consent to marketing can be express or implied.  Trademarked goods put on the market by the proprietor or with his consent in a country outside the European Community like Singapore, which find their way independently into the Community can however be stopped by the trade mark proprietor.
In June 2010, the European Court of Justice considered whether trademarked perfume testers supplied by Coty Prestige Lancaster to its selected distributors were put on the market so that Coty’s rights to sue for unauthorized resale of the testers were exhausted.
In fact the testers which were branded with Community trade marks were supplied by Coty to its agent in Singapore so that the exhaustion rule could not apply.  However the ECJ also deliberated on what would have been the situation if Coty had supplied its trademarked testers to authorized dealers in the Community. The ECJ ruled that because the testers were labeled ‘demonstration’ and ‘Not for resale’ any presumption of consent to marketing on the part of Coty was negated.  In other words, Coty could have sued for trade mark infringement if the testers were sold.
Apparently there is a market in perfume testers which often differ only in their packaging.  So the ECJ decision is good news for the owners of perfume marks whose trademark infringement rights have been confirmed.
Case C-127/09, Coty Prestige Lancaster v. Simex Trading, 3 June 2010