The Right to Oppose Further Commercialisation of Goods According to Art. 15(2) of the European Union Trade Mark Regulation ‒ A Balance of Interests?

Abstract

Abstract This article addresses the balance between free competition and protecting the trade mark proprietor’s interests in the context of selective distribution systems for luxury goods and the right to oppose further commercialisation. Within this framework, the author suggests a flexible system concerning the legitimate reasons for such an opposition, especially regarding luxury goods in the consumer product sector. In particular, the author looks at whether distributors of parallel imported goods – often referred to as ‘grey market traders’ – should take into consideration the limitations and conditions for the distribution of goods in the European Economic Area that are imposed on contractually bound distributors by luxury brand owners, depending on the applied distribution method, the advertising and the quality of goods. The idea of an entitlement of the brand owner to oppose matters of further commercialisation of exhausted goods if the reseller does not comply with obligations which the trade mark proprietor imposes on members of his own selective distribution system regarding specific modalities of sale is also discussed.