In Unilever PLC & another v. Morris & Son (Leeds) Ltd & another, Unilever has successfully obtained summary judgment against the second defendant, Merco Imports Ltd, for the parallel import of Surf detergent manufactured in Canada into the United Kingdom.
Unilever PLC became aware of the first defendant, Morris & Son (Leeds) Ltd (“Morris”), selling Surf detergent manufactured in Canada to customers within the United Kingdom. Unilever PLC successfully obtained an interim injunction against Morris preventing it from selling the detergent, ordering deliver-up and obliging it to name the company from which it had purchased the goods in question. Morris identified the second defendant, Merco Imports Ltd (“Merco”), which was subsequently joined to the proceedings. The action as against Morris was then settled and an application for summary judgment made against Merco.
Merco alleged that Unilever Canada, Inc had consented to its import of the Canadian Surf detergent into the EEA. Merco alleged that Unilever Canada, Inc was complicit in the export of the goods because it was aware (although no substantive evidence was provided to this effect) that its Canadian customers would sell the goods to exporters who, in turn, would export it (by virtue of its English language packaging) to English speaking markets. Further, Merco attempted to establish (but failed to provide evidence) that a sales representative of Unilever Canada, Inc had consented to the broker that it could export the Surf detergent.
Unilever PLC argued that Unilever Canada, Inc, on the facts, was not complicit in the export of the goods and, as a matter of law, neither it nor its sales representative had authority (or ostensible authority) to consent to the import of goods into the EEA. Further, Unilever PLC argued that, in the event that there was ‘complicit’ consent, it was to the export of goods from Canada, not the imports of goods into the EEA; such consent being insufficient for the purposes of establishing positive consent into the EEA as per Davidoff.
Mr Justice Mann allowed the application, finding that Merco had no real prospect of successfully defending the claim and that there was no other compelling reason why the case should be disposed of at a trial.
Mr Justice Mann applied Honda Motor Company Ltd v. Neesan holding that it was questionable whether a sales representative or a foreign subsidiary had authority (or ostensible authority) to consent to the import of goods into the EEA and, even if there were authority, any consent was to the export of goods which was insufficient for the purposes of establishing positive consent to imports into the EEA.
This case shows, again, how difficult it is for parallel importers to establish a trade mark owner consented to the importation of parallel goods into the EEA where they cannot point to consent in writing. Further, it illustrates the usefulness to trade mark owners of the English summary judgment procedure as an expeditious (and relatively cost effective) method of addressing the illegitimate practices of parallel importers.