A Victory For Pharmaceutical Trade Mark Owners

Ferring markets a medicine under the brand "Klyx" in Denmark, Finland, Sweden and Norway. In all those countries, Klyx is sold in the same way: in containers of 120 and 240ml sold individually or in boxes of 10 units.

Orifarm bought 10-unit boxes of Klyx in Norway, repackaged them individually, reaffixing the KLYX mark to them, and sold them in Denmark.

As an EEA member, Norway is subject to Directive 2008/95. Article 7 of that Directive provides:

1. The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
2. Paragraph 1 shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialisation of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.