On 20 of November 2015 the High Commercial Court of Ukraine delivered a decision in the Kaeser Kompressoren SE v. Komprig Ltd. case (Case No. 904/2029/15) that confirms international trademark exhaustion in Ukraine.
The case was initiated by Kaeser Kompressoren SE over the use of its trademark "Kaeser" on a web-site operated by Komprig Ltd. in connection with sales of original products of Kaeser Kompressoren SE in Ukraine.
While the court of the first instance and the appellate court supported the claims and recognized that the use of the "Kaeser" trademark on the web-site operated by Komprig Ltd. was illegal, the High Commercial Court of Ukraine reversed the decisions of the previous instances and denied satisfaction of all clams by noting the following in its decision.
"The norms of part 6 Article 16 of Law No. 3689 [The Law of Ukraine on Protection of Rights to Trademarks] does not relate exhaustion of trademark rights with the introduction of goods onto the market by the trademark owner (or with its consent) exclusively on the territory of Ukraine. Therefore, the introduction of goods under a certain trademark onto the market by the trademark owner (or with its consent) could be conducted on the territory of other country(ies) and after that the owner can not limit or prohibit further resale of this product in a country where its rights are protected (including in Ukraine). The aforesaid, in the absence of territorial restrictions, gives grounds to affirm the existence in Ukraine of an international approach to exhaustion of rights."
Furthermore, according to this decision of the High Commercial Court of Ukraine, trademark rights exhaustion also bars a trademark owner from prohibiting use of a trademark by a reseller, including online use, in connection with such resale, unless there is a concern over the quality of the resold products.
While over the last several years there have been several decisions of lower courts in Ukraine confirming international trademark exhaustion this is the first decision of the High Commercial Court of Ukraine on this matter. It is not unusual for court decisions in Ukraine to take different views even within one court, however this decision is a clear indication of where court practice might go in the coming years.