The free movement of goods II: pharmaceuticals, trade marks and parallel imports

Abstract

Introduction Consumers and retail stores buy and sell pharmaceutical products by reference to the brand name or trade mark of each product. Health care professionals can (and in some cases still do) prescribe or recommend medication by reference to a trade mark or brand name rather than the generic name of the compound, often because the ultimate consumer is more familiar with the brand name (as a result of advertising) than with any technical name for the product. The result is that the trade mark becomes a valuable shorthand means of identifying a product of a particular composition with a particular therapeutic effect originating from a specific manufacturing source. If the same product is sold in different markets at significantly different prices, should a third party be allowed to export goods from the low-price market to the higher one and sell the goods at a profit? Where products vary in their composition from one market to another or, if the brand name is different in one market compared to another market, should a third party still be entitled to redistribute the product and, if necessary, relabel or repackage the product, changing the brand name in the process? Should it matter whether the product was first sold within the European Economic Area (EEA) or not? These are just some of the questions that this chapter seeks to explore whilst considering the impact of trade mark law on the free movement of goods, and pharmaceuticals in particular.