No Objection by the Trademark Owner to Parallel Imports of a Medicine – Comments in Light of the Supreme Court Ruling in the Benalapril Case

Abstract

Parallel import of repackaged medicinal products have been a constant subject of CJEU case law since the 1970s. One might therefore assume that all relevant issues have already been clarified and that the interpretation of the legal basis of this economic phenomenon is no longer in doubt. However, even such a seemingly simple institution as the obligation to notify the intention to market a repackaged medicinal product can, in the practice and theory of industrial property law, give rise to disputes and lead to completely different rulings by the highest courts of the Member States. An example of this is the recent judgment of the Polish Supreme Court in the Benalapril case. The interpretation of the above-mentioned premise adopted in this judgment differs to a significant extent, as regards the determination of the consequences of the trade mark owner’s failure to oppose the notification, from the decisions of the courts of other Member States. The interpretation adopted also needs to be scrupulously assessed in the light of the CJEU case law, which has adopted interpretative guidelines suggesting a different solution to the legal issue that has arisen.