Exhaustion of trade mark rights and repackaging of parallel import products: the Ferring/Orifarm case
By a preliminary ruling under Article 267 TFEU in Ferring/Orifarm (judgment of 10 November 2016, Case C-297/15, Ferring Lægemidler AS v Orifarm AS, ECLI:EU:C:2016:857), the CJEU once again dealt with the issue whether a trade mark owner can oppose to the parallel import of trade-marked pharmaceutical products, whose package has been modified by the importer. Ferring sold a drug in the Nordic countries under the trade mark of Klyx in different packages. Orifarm bought the drugs in Norway in the packets of 10 to resell in Denmark, after repackaging them, in new packets of 1, upon which it affixed the Klyx trade mark. Importantly, Ferring marketed in Denmark the drugs both in 1-packets and 10-packets. Ferring commenced a trade mark infringement action against Orifarm before the Maritime and Commercial Court of Denmark. It contended that it had the right to object to the importation of the Klyx drugs from Orifarm. It also argued that the repackaging made by Oriform was unlawful, its