The European Court of Justice has held that it was okay for a parallel importer of pharmaceutical products to label itself ‘repackager’ although the products were actually repackaged by another company.

Parallel importation of pharmaceutical products is legal in the EU under certain conditions. For one thing, if the products are repackaged, the new packages must state the name of the repackager. This was the issue before the EU Court in a recent case.

Two Danish parallel importers had imported a number of pharmaceutical products. Before placing them on the Danish market, they had the products repackaged to ensure that they could be legally sold in the Danish market.

The parallel importers left the actual repackaging job to other companies. But according to the label, the products had been repackaged by the two parallel importers.

The trademark owner did not like this. So the trademark owner went to the Copenhagen Maritime and Commercial Court for an interim injunction to prevent the parallel importers from placing the products on the Danish market because the repackaged products did not display the name of the company which had actually repackaged the products.

On appeal, the Danish Supreme Court asked the EU Court if this practice was at odds with EU law.

Consumers got what they were entitled to

The EU Court said that a trademark owner cannot prevent a pharmaceutical product from being placed on the market if certain conditions have been met. One of these conditions is that the label must display the name of the company that repackaged the products. What is important is that the consumer knows who is responsible for repackaging the products.

The EU Court held that consumers were adequately informed in this case because it was clear from the label who was responsible for having the products repackaged. Accordingly, it was not a requirement that the company who had done the actual repackaging should be displayed.

Norrbom Vinding notes:

  • that the judgment follows in the wake of a number of other judgments from the EU Court, all of which concern what options pharmaceutical trademark owners have under trademark law to prevent parallel importation; and
  • that the case illustrates that only in special circumstances – particularly if it is in the interests of consumers/patients – can a pharmaceutical trademark owner prevent parallel importation of its products if they are already marketed and sold in an EU country.