3.4.2017

EN

Official Journal of the European Union

C 104/26

(Case C-642/16)

(2017/C 104/39)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Junek Europ-Vertrieb GmbH

Defendant: Lohmann & Rauscher International GmbH & Co. KG

Questions referred

Must Article 13(2) of Regulation (EC) No 207/2009 (1) be interpreted as meaning that the proprietor of the mark can oppose further commercialisation of a medical device imported from another Member State in its original internal and external packaging, to which the importer has affixed an additional external label, unless

it is established that reliance on trade-mark rights by the proprietor in order to oppose the marketing of the overstickered product under that trade mark would contribute to an artificial partitioning of the markets between Member States;

it is shown that the new labelling cannot adversely affect the original condition of the product inside the packaging;

the packaging states clearly who overstickered the product and the name of the manufacturer;

the presentation of the overstickered product is not such as to be liable to damage the reputation of the trade mark and of its proprietor; thus, the label must not be defective, of poor quality, or untidy; and

the importer gives notice to the trade mark proprietor before the overstickered product is placed on the market, and, on demand, provides him with a specimen of that product.

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ L 78, 24.3.2009, p. 1).

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