The implications of intellectual property law for the auditing and protection of national and international brands: Part II. Brands in the grey market

Abstract

Provides a practical snapshot of the legal situation governing the protection and exploitation of brand power within the European “grey market”. Predominantly, this occurs through the use and enforcement of intellectual property rights, namely the trade mark. However, legal events over the last year or so have fundamentally affected the antics of grey marketers and the subsequent powers granted to the owners of a range of branded marks, including famously lucrative names such as Levi’s, Nike and Calvin Klein. The recent pronouncements from the European Court of Justice (ECJ) in Luxembourg together with national court decisions have created a degree of confusion. The landmark Silhouette Case has proved immensely controversial with regard to the operation of trade mark law throughout the European Union (EU). The decision seems to prohibit the importation into the EU of branded goods or services, unless such activity has been specifically consented to by the brand owner. At a glance, the culmination of these legal precedents seems to have dealt the grey market operators and traders a severe blow – with potentially adverse effects for the European consumer as well. Seeks to analyse recent events by providing the backdrop to the controversy and then putting the cases into perspective so as to offer sound and practical advice to all interested parties in the now modified grey market environment.