The Court of Appeal has overturned the High Court’s decision to grant summary judgment to Oracle America, Inc (Oracle) (previously Sun Microsystems, Inc) relating to a trade mark infringement. The case before the High Court concerned the parallel importation into the UK from the US of 64 disk drives carrying the Oracle trade mark by M-Tech Data Ltd. (M-Tech). The High Court gave a summary judgment (i.e. an immediate judgement without full trial where the defendant has no prospect of success) on the basis that Oracle’s rights to sue for trade mark infringement were not exhausted as Oracle had not placed the disk drives on the market in the European Economic Area (EEA). M-Tech appealed on the grounds that its defences were arguable. On 24 August 2010, the Court of Appeal gave judgment in favour of M-Tech finding that the case should have gone to full trial. It considered that M-Tech’s main defences invoking EU free movement rules were properly arguable before the courts and there was a potential competition defence in the argument that the purpose of the terms agreed with authorised distributors and resellers was to eliminate the unauthorised secondary trade. The Court of Appeal did not give a view on the substance of these defences but rather found that they should have been considered. The case is being considered for expedited trial. The Court of Appeal suggested that if the allegations were established, the trial judge would have to consider whether to make a reference to the European Court of Justice to enable him to decide the issues.