Trade marks

The case law of the Court of Justice of the European Union differentiated between: (i) cases where the goods had not previously been marketed in the EEA by the proprietor or with his consent and the proprietor was seeking to exercise his rights under Art 5 of the Directive in circumstances where his rights were not yet exhausted under Art 7.1; and (ii) cases governed by Art 7.2, where the goods were legitimately in circulation within the EEA but the proprietor nevertheless claimed to have “legitimate reasons” to oppose their “further commercialisation”. In contrast to the position in relation to the exercise of the proprietor’s extended right under Art 7.2 which might, depending on the facts, engage the principle of free movement of goods, the court considered that that principle was incapable of restricting the right of a trade mark proprietor to prevent the first marketing within the EEA of goods imported from outside the EEA. Where it was established that the goods had not previously been