Judgment of the European Court of Justice Concerning the Repackaging of Pharmaceutical Products by Parallel Importers

On April 26, the European Court of Justice rendered its judgment in Case C-348/04 Boehringer Ingelheim and Others v Swingward and Others, Cleary Gottlieb represented Boehringer Ingelheim KG and Boehringer Ingelheim Pharma GmbH & Co. KG. clarifying the scope of trademark owners’ rights in relation to importers that tamper with or replace the original packaging of pharmaceutical products bearing a trademark. Modification or replacement (“repackaging”) of the original packaging of imported products is often required in the pharmaceutical sector because of differing national regulations concerning, for example, box sizes. Importers have tended to exploit this situation by repackaging products in packaging displaying their own trade dress, and generally presenting the imported products as forming part of their own range of products. The ECJ’s ruling sheds light on a number of fundamental issues left unanswered by its previous judgments in this area. The ECJ departed from the Opinion of Advocate General Sharpston and ruled in favour of trademark owners on all points raised, except for one.