Amicus Brief

Case C-175/21 Harman International Industries, Inc v. AB SA

Published: January 10, 2022


Court of Justice of the European Union

Our Position

Exhaustion of trademark rights is one of the few exceptions to the strong and exclusive rights of trademark owners as it completely nullifies the right to prohibit the further distribution of the goods in question under the trademark proprietor’s brands. The principle of exhaustion aims to balance the interests of trademark owners and the public, as well as competitors and other market players. EU member states’ national courts describe goods for which remedies in parallel import cases apply as “goods which have not been put on the market within the European Economic Area (EEA) by the right holder or with his consent.” This practice does not violate Article 15 (1) of the EU TM Regulation or Article 36 second sentence TFEU (Treaty on the Functioning of the European Union). A departure from this practice entails the risk of evading the uniform interpretation afforded to these provisions by the Court of Justice of the European Union. Moreover, identifying the goods as proposed by the referring court undermines the purpose of the EU’s parallel imports regime, namely the ability of the right holder to control the first entry of their goods into the EEA, as this results in the rights holder being de facto unable to enforce their rights.