Abstract
So far as I can see, there is only scattered and widely differing information available on the differentiation of existing products and product groups. The American Breakfast Cereal case (see Chapter II, footnote 62) shows, for example, that there is a great deal of differentiation between pre-packed ready-to-eat foods, perhaps because they are sold mainly in self-service stores. To stay with breakfast for the time being — in the Federal Republic of Germany there was hardly any differentiation to begin with in bread, this was in the early 1950s. The ordinary ‘Konsumbrot’ (standard bread), which was hardly advertised by bakeries, was forced off the market (and has now disappeared) by scores of different types of bread, including a good many manufacturers’ and dealers’ own brands.1
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References
Burkhardt Röper, Werbung für Markenartikel, Auswirkungen auf Markttransparenz und Preise (Göttingen, 1976), pp. 289–290.
Verkaufswerbung, ihre Technik, Psychologie und Ökonomie (Berlin, 1958), quoted in B. Röper, op. cit. 261.
On this point see also Douglas F. Greer, ‘Advertising and mergers in the Drug Industry: A courtroom study of “product differentiation”’ (1970–71) Antitrust Law & Economics Review 37.
With reference to Baudenbacher, see subsection 22.
See subsection 10.
Christian Kirchner, Internationale Marktaufteilungen, p. 119.
See also Report 1974:9 from the Swedish Konsumentverket: ‘Märkesdifferentiering ett Konsumentprob-lem’, p. 7.
In the case of cars, washing-machines and light bulbs, for example, the individual consumer cannot determine the absence of differences between the various brands. Test organisations, however, can do and do this easily (see elsewhere in this study and also, concerning light bulbs, the study by Konsumentverket of the Swedish market in 1974: six manufacturers and importers, eleven manufacturers’ brands and a number of dealers’ own brands — their finding was that, for technical reasons, all light bulbs are almost identical). See also Tenth Report on Competition Policy (EC Commission, Brussels — Luxembourg, 1981), sect. 262.
For statistical material on losses of purchasing power in the case of bad buys: Udo Beier, ‘Kaufkraftverluste durch Fehlkaufe’, Der Verbraucher, 1977, No. 4, p. 8 et seq.; also Zum Einfluss beschränkter Markttransparenz auf die Kaufentscheidungen der Privathaushalte: Dargestellt am Beispiel von Waren der Komfortausstattung (Hamburg University, September 1977, Report No. 0611/10–77).
Internationale Marktaufteilungen: Möglichkeiten ihrer Beseitigung mit einer Fallstudie über den internationaler Arzneimittelmarkt (Frankfurt, 1975).
Erich Kaufer, Die Ökonomik der pharmazeutischen Industrie (Baden-Baden, 1976).
Consumers and the cost of pharmaceutical products (undated).
J. B. Heath et al., A study of the evolution of concentration in the pharmaceutical industry for the UK (EC Commission, October 1975);
H. W. de Jong and R. de Lange, A study of the evolution ... in the Netherlands (November 1975);
Katherine Blunden, Etude sur l’Evolution de la Concentration dans l’Industrie Pharmaceutique en France (November 1975);
Société Studia, Etude ... en Belgique (November 1975).
‘Limits to Medicine’ (1976) (in Penguin, Harmondsworth, 1977).
Advies inzake kostenombuiging en kostenbeheersing op het terrein van de farmaceutische hulp (issued by the Sickness Fund Council to the Secretaries of State for Public Health and Environmental Hygiene, 1980); Voorlichting Prijzen Geneesmiddelen (1979); Medisch Farmaceutische Voorlichting (1977, with supplements up to June 1980). I am extremely grateful to Mr. P.B. Mertens, pharmaceutical adviser to the Dutch Sickness Fund Council for letting me have these and other documents. The last-named are published by the Committees of the Dutch Sickness Fund Council. For information about these publications and committees, see subsection 75.
Article 13, EEC Council Directive 65/65, 26 January 1965 (first harmonization Directive), and Article 6, EEC Council Directive 75/319, 20 May 1975 (second harmonisation Directive), make it compulsory to show the international generic names of the principal active substances on the label and on the leaflet. The generic names may, however, still differ from one country to another, as international names have not yet been established for all preparations; WHO is working on a universal list which is not yet complete.
Of these diseases between 31 and 51 per cent. in the U.S.A. between 1958 and 1968. Source: H.G. Grabowski and J.M. Vernon, The Ethical Drug Industry — Structure, Conduct and Performance (December 1975, unpublished), quoted in A. Kaufer, op. cit; p 14.
The Limits of Medicine, pp. 23–24, with references to, inter alia, René and Jean Dubos, The White Plague: Tuberculosis, Man and Society (Boston, 1953);
N. S. Scrimshaw, C. E. Taylor and John A. Gordon, Interaction of Nutrition and Infection (Geneva, World Health Organisation, 1968).
R. P. Porter, The contribution of the biological and medical sciences to human welfare (Presidential Address to the British Association for the Advancement of Science, Swansea meeting 1971, London, 1972), p. 95; quoted in Illich, op. cit.
Illich, p. 24; he seeks support for this on the facts reported in footnote 18, above.
Henry Simmons, in Nicholas Wade, Drug Regulation: Food and Drug Administration, Replies to Charges by Economists and Industry (1973) 179 Science 775–777.
I. Illich, op. cit. pp. 82–83.
E. Kaufer, op. cit. p. 163 mentions as an example of a successful combined preparation, Lilly’s ‘Deteclo’, a combination of three well-known antibiotics which is superior to the other products in effect and price. Other examples of combined preparations are remedies against colds, influenza and various pains.
E. Kaufer, p. 64 et seq.
A large number of important specialities have been developed since 1960 and are now protected by patents (but not for much longer) (Advies inzake kostenbeheersing, p. 5).
Thomas C. Batsh, Francis M. Boddy, Benjamin F. King and Peter N. Thompson, A class action suit that worked (The Consumer Refund in the Antibiotic Antitrust Litigation) (Lexington, Mass., 1978), pp. 1 and 3.
Protection used to vary from one country to another. The duration of European patents granted after 1 June 1978 is 20 years (Munich Agreement on the Grant of European Patents, 5 October 1973). The period of 20 years is roughly an average of what used to be the normal periods in the agreement countries (the EEC Member States and certain other West European countries). The actual life span of a drug is even shorter than the duration of the patent: for example, in the United Kingdom a period of three to five years elapses between the grant of the patent and the launch of the product (J.B. Heath et al., op cit. p. 40).
Cf. Christian Kirchner, op. cit. p. 119.
A typical example of a ‘new product strategy’ to replace a patented preparation, the growth in sales of which had begun to decline, was the introduction in 1972 of Amoxil (Amoxycillin) by Beecham (J.B. Heath et al., op cit. p. 40).
Advies inzake kostenbeheersing geneesmiddelenvoorziening, p. 4. In the U.S.A. (in 1970): also 10 per cent. according to the sources given in Christian Kirchner, op. cit. p. 124.
See subsection 76, below.
For example, see E. Kaufer, op. cit. p. 23.
For example, see Brand Names in Prescribing (published by the Office of Health Economics), quoted in Consumers and the Cost of Pharmaceutical Products (BEUC), p. 55.
Op. cit. p. 193.
Op. cit. p. 84.
Bioverfügbarkeit von Arzneistoffen (Frankfurt, 1974).
Mr. P.B. Mertens, Pharmaceutical adviser to the Sickness Fund Council, in a discussion with the author on 18 June 1980.
That is, a wholesaler who, apart from raw materials and pharmaceutical preparations, can supply all, or almost all, branded drugs registered in The Netherlands and is also affiliated to the Association of Wholesalers in the Pharmaceuticals Industry. There are seven of these, four of which operate throughout the country. (Advies inzake Kostenbeheersing ..., p. 10, and letter dated 20 June 1980 from Mr. P.B. Mertens.)
See footnote 37.
Letter dated 26 June 1980 from Mr. P.B. Mertens to the author.
See André Dessot in Le Monde, 3 April 1980. This press report tells how the ‘Laboratoires français de produits génériques’ (80 per cent. subsidiary of Clin-Midy Industries, an established manufacturer) was obliged to stop supplying generics to pharmacists because the latter refused to accept them (only hospitals are now supplied). See also on this boycott, the parliamentary question of Mr. Michel and the answer of Commissioner Narjes in O.J., No. C78, of 6 April 1981, p. 19. Now that the Fédération des Syndicats pharmaceutiques de France has been fined 2,000,000 francs for this boycott by the Minister of Economic Affairs, the generics will reappear on the French Market (André Dessot in Le monde, 16 and 18 July 1981).
Among others K. Blunden, op. cit. p. 32.
See report on a recent study undertaken by Fr. Jaminet (University of Liège) at the University of Heidelberg, ‘biodisponibilité et équivalence des médicaments’, La Libre Belgique, 4 March 1980.
Kurt Langbein, Hans-Peter Martin, Hans Weiss, Roland Werner in Gesunde Geschäfte: Die Praktiken der Pharma-Industrie (Köln, 1981), p. 45, a book claimed to be based on inside information from a few important European pharmaceutical concerns, give the following figures: Amoxixillin, an antibiotic belonging solely to Beecham (see also subsection 46 of this report); is presented in Portugal, Turkey and Iran in a dosage of 3 x 250 mg/day, whereas in the Federal Republic of Germany and Austria this is 3 x 750 mg/day. Lilly’s ‘Cefaclor’, also an antibiotic, shows a dosage of 2 x 250 mg/day in South Africa, 3 x 250 mg/day in Britain and Switzerland and the U.S.A. and 500 mg/day in the Federal Republic, still for the same indication. See also the Acetosal example in subsection 63.
Op. cit. pp. 46–47.
Etienne Cracco, Philippe Planche and Michel Sauboin, Les Médecins face à l’information médicale (Louvain-la-Neuve, 1977), p. 145, come to the conclusion in an empirical study that most doctors have little awareness of cost when they prescribe.
The tendency to prescribe new and expensive drugs is naturally greatest when the proportion payable by the patient is fixed at an invariable amount. A recent Royal Decree in Belgium, where this system has been in force so far, substitutes a percentage repayment (Royal Decree, 1 September and 2 September 1980, Moniteur Belge, 30 September 1980. The first reaction of a pharmacists’ association to this is characteristic. The pharmacists fear, among other things, that the doctors will prescribe ‘old-fashioned’, less expensive drugs which they claim are less active (De Standaard and De Morgen, 17 September 1980).
See Christian Kirchner, op. cit. p. 120, who comments in more detail on these three properties.
Erich Kaufer, op. cit. p. 164.
On the usefulness of the patent system in general, i.e. the incentive to invent, a ‘reward’ for the inventor (reward theory) and the proper allocation of resources for successive technological developments (‘prospect theory’), see Edmund W. Kitch, ‘The nature and function of the patent system’ (1977) 20 Journal of Law and Economics 265 et seq. (See also the reaction to certain aspects of the ‘prospect theory’ by Donald G. McFetridge and Douglas A. Smith, ‘Patents, prospects and economics surplus: a comment’ (1980) 23 Journal of Law and Economics 197 et seq. and Kitch’s reply at p. 205 et seq.)
The Netherlands: H. W. de Jong and R. de Lange, op. cit. p. 50; the United Kingdom J.B. Heath et al., op. cit. p. 70.
Cracco, Planche and Sauboin, op. cit.
H.W. de Jong and R. de Lange, op. cit. p. 50.
Probably, no one now needs persuading of the quantitative importance of advertising for pharmaceuticals. Nevertheless, a few examples: The ‘Commission Ocelli’ (the committee made responsible by Ministerial Decree of 7 September 1972 for studying the problems of advertising for pharmaceutical specialities) came to the conclusion that, in France, 17 per cent. of the price ex works or 8.2 per cent. of the retail price was spent on advertising (quoted in K. Blunden, op. cit. p. 32).
The effect of a drug can also be simply the result of autosuggestion. This explains the existence of placebos which contain no active ingredient. They are sometimes prescribed, for instance, for chronic swallowers of laxatives, sedatives or sleeping pills (see Medisch Farmaceutische Voorlichting, p. 163, for examples of such products).
See also Jean-Pierre Dupuy and François Gerin, ‘Société industrielle et durabilité des biens de consommation’ (1975) Revue économique 430–431, and J.-P. Dupuy and S. Karsenty, ‘L’invasion pharmaceutique’ (Paris, 1974), p. 190.
See Christian Kirchner, op. cit. p. 121: it is quite possible that a higher price for a drug leads to bigger sales because there is often assumed to be a link between the price and the effectiveness of a drug. This assumption is very real, particularly if the patient himself is not directly responsible for the cost of the prescribed drug. In this case, if the doctor prescribes the cheaper of two equivalent drugs, the patient concerned will often think that he has been given a less effective medicine.
Op. cit. p. 75.
Op. cit. p. 40; at the beginning of 1973 the product was marketed under the name ‘Clamoxyl’ in The Netherlands. Within a single year it achieved a market share of 10 per cent. at the expense, among others, of Penbritin (H.W. de Jong and R. de Lange, op. cit. p. 25).
To clarify this point: amoxycillin and ampicillin are both types of semi-synthetic, broad spectrum penicillin with, according to sources of information outside the industry available to me (H. Pradal’s Nouveau guide des médicaments, p. 66, and the Medisch Farmaceutische Voorlichting of the CMPC of the Sickness Fund Council, p. 63 of the eighth supplement), pretty well the same effect. These drugs are very valuable, very effective, but also very expensive. At the same time they were prescribed very frequently (in The Netherlands Clamoxyl was No. 1 on the ‘hit parade’ of drugs, see footnote 61), according to these authors too frequently, sometimes for illnesses which could have been treated with less perfected antibiotics.
In 1977 Clamoxyl claimed 44.2 per cent. of the total turnover of drugs supplied to insured Dutch patients (table from the Dutch Sickness Fund Council).
Paul Schilz and Colette Schilz-Krings, Vademecum de Pharmacie (Eupen, 1976). Clamoxyl, Moxaline, Hiconcil and Novabritin are shown in the Tarief der Pharmaceutische Specialiteiten of the General Pharmaceutical Association of Belgium. Presented as 16 x 500-mg capsules the four brands cost the same in the 1979 issue (54th year) of the Tarief: BF554. Again, Novabritin is marketed by Bencard NV; Clamoxyl by Beecham NV; both of these are subsidiaries of the Beecham Group Limited (see Etude sur l’évolution de la concentration dans l’Industrie pharmaceutique belge (Brussels, 1975), p. 65).
See Pres. Comm. Court, Brussels, 9 January 1979 (1979) Revue de droit intellectuel p. 40, et seq.
Consumers and the cost of pharmaceutical products, p. 92.
See above, subsection 18.
See above, footnote 62.
See subsection 64.
See footnote 63.
Proposal for a Commission Regulation on the Application of Article 85 (3) of the Treaty to Certain Categories of Patent Licensing Agreements, O.J., No. C58/12, 3 March 1979.
As declared by Mr. Hartmut Johannes, head of the department of the Law of Industrial Property in Directorate C of D.G. IV (Competition).
De Jong and de Lange, op. cit. (who give a survey of the activities of every pharmaceutical firm in The Netherlands) show, for example, that Beecham is the leader for antibiotics (chiefly Clamoxyl/Penbritin) while Hoffmann-La Roche (the biggest pharmaceutical concern in the world) has the largest share of the entire pharmaceuticals market in The Netherlands, two-thirds of this through Valium and a few other very closely related tranquillisers/sleeping pills (Librium, Nobrium, Mogadon).
See, for example, the example of tetracycline mentioned in subsection 41.
Court of Justice, 31 October 1974, Centrafarm v. Sterling Drug [1974] E.C.R. 1147 (Grounds, Nos. 11 or 27–28).
See also subsections 58 and 61.
Preamble to the Proposed Regulation on the application of Article 85(3) of the Treaty to Certain Categories of Patent Licensing Agreements loc. cit., 10th ground.
In this connection, see also Article 54, fifth paragraph, of the Munich European Patent Agreement; see Werner Stieger, ‘Artikel 54, Abs 5 des Münchener Patentübereinkommens: Eine pharmazeutische Sondernorm’, GRUR Int. 1980, p. 203.
The encouragement of real competition between licensor and licensee is one of the objects of the proposed block exemption of certain patent licensing agreements under Article 85, paragraph 3, of the Treaty of Rome. It will, therefore, be understood that, if there is a patent licence between two independent companies and an option to allow the licensee to win an independent position on the market, Article 3, No. 9, refuses an exemption of the prohibition of Article 85(1) if the licence incorporates ‘a clause prohibiting the licensee from using his own trade mark or business name or a specified get-up ...’.
See, for example, in Belgium: ‘Het Geneesmiddel: Reclame en Overconsumptie’, File of the Verbruikersunie v.z.w. (Test-Aankoop) Brussels, q.v.; question by Representative Baudson (pharmaceutical industry — extent of advertising), Vragen en Antwoorden Kamer, 29 May 1979, p. 484; Plasman bill, Gedrukte Stukken Kamer, 1977–78, No. 204/1 and Lenssens-Langendries bill, Gedrukte Stukken Kamer, 1979–1980 session; for the existing specific legislation on advertising for pharmaceuticals and the discussion at the European level, see subsections 69 and 70.
Op. cit. p. 132 et seq.; for France see also Jean-Pierre Dupuy and Serge Karsenty, L’Invasion pharmaceutique (2nd ed., Paris, 1974), p. 97.
Christian Kirchner, op. cit. pp. 134–135; see also Jean-Pierre Dupuy and Serge Karsenty, op. cit. p. 100 et seq.
See also the written parliamentary questions (Mr. Michel) and answers of Commissioner Narjes in O.J., No. C78 of 6 April 1981 on pp. 18 and 19 (marketing practices of Mead Johnson and Glaxo); see also K. Langbein et. al., op. cit. p. 34 et seq.
Loc. cit.
(1980) Revue de Droit Intellectual 31.
With regard to the possibility of causing confusion (trade mark infringement) the law is, moreover, traditionally more lenient in respect of pharmaceuticals than other products. The reasons for this are: the large number of brands, the fact that both the original manufacturer and the newcomer necessarily keep close to the generic name, and the ‘customer’, at least for ethical drugs, is a professional who will not readily confuse two products. For Belgium: A. Braun, Précis des Marques de produits (Brussels, 1971), No. 100; for the Federal Republic of Germany: Baumbach-Hefermehl, Warenzeichenrecht (11th ed., 1979), No. 33 to Paragraph 31, Trade Marks Law.
P.B. Mertens of the Dutch Sickness Fund Council in the interview of 18 June 1980, mentioned above.
Judgment of the Benelux Court, 9 February 1977, Centrafarm BV v. Beecham Group Ltd. (1975–1979) Benelux Gerechtshof Jurisprudentie 27 et. seq.
Friedrich-Karl Beier, ‘Ausstattungsschutz für Farben’ (1980) GRUR 600 et seq.; American protection is comparable to German protection, see Court of Appeals, 2d circ, 11 June 1979 (‘Cyclospasnol’) (1981) GRUR Int. 471, note by C.-M. Denk.
At the same time, the two big Swiss manufacturers, Hoffmann-La Roche and Ciba-Geigy, claim that they have never fallen back on this method. So far as can be checked, they give convincing explanations for the different brand names for the same product in different countries (an ‘Ausweichmarke’ (substitute trade mark) owing to priority rights, the risk of misleading the world market in a given language, etc.) (letter dated 20 December 1979 from Dr. Albert Degen, Vice-Chairman, F. Hoffmann-La Roche & Co AG, Basle, to the author and letter of 12 June 1978 from Dr. Storkebaum, Vice-Chairman, Ciba-Geigy AG, Basle, to Dr. Berthold Schwab, Principal Administrator, D.G. Ill EEC Commission). For Hoffmann-La Roche, see also subsection 58. For Geigy, see also footnote 89.
See footnote 60.
Ciba-Geigy is, after all, among these; for France see also footnote 41.
A recent example is the judgment given by the Court of Justice, on the basis of Article 30, against the French legislation which instituted a ban on advertising for alcoholic drinks distilled from grain (whisky and gin) once it was found that all these drinks were imported, particularly from other Member States (Court of Justice, 10 July 1980, [1980] E.C.R. 2299; see on this and a few other recent cases in Derrick Wyatt, ‘Article 30 EEC and non-discriminatory trade restrictions’ [1981] E.L.R. 185 et seq.
O.J. No. L13/29, 1970. Sec P. Verloren van Themaat in SEW, 1970, p. 258 et seq.; see also the Report of the Commission in O.J., No C256/2 of 3 October 1980, arising out of the Gilli case in the Court of Justice, 26 June 1980, case 788/79, [1980] E.C.R. 2071; see also subsection 90.
Court of Justice, 11 July 1974, Dassonville, case 8/74, [1974] E.C.R. 837 et seq. For subsequent case law see W. van Gerven, The recent Case Law of the Court of Justice concerning Articles 30 and 36 of the EEC Treaty’ [1977] C.M.L.Rev., 5 et seq.
See, in particular, Court of Justice, 16 February 1976, case 65/75, Tasca [1976] E.C.R. 291; Court of Justice, 29 June 1978, case 154/77, Dechmann [1978] E.C.R. 1573; Court of Justice, 12 July 1979, case 223/ 78, Grosoli [1979] E.C.R. 2621; Court of Justice, 6 November 1979, cases 16–20/79, Danis et al. [1979] E.C.R. 3327; Court of Justice, 18 October 1979, [1980] E.C.R. 51/79, Buys et al. [1979] E.C.R. 3203; [1980] E.C.R. Court of Justice, 17 January 1980, cases 95–96/79, Kefer & Delmelle 103.
For example, see Vereinbarkeit von Preisregelungen auf dem Arzneimittelmarkt mit dem Recht der Europäischen Wirtschaftsgemeinschaft (Baden-Baden, 1979), by Ernst-Joachim Mestmäcker on behalf of the Bundesverband der pharmazeutischen Industrie eV.
See, in the initial phase: Hartmut, Johannes, Gewerblicher Rechtsschutz und Urheberrecht im Europäischen Gemeinschaft (Heidelberg, 1973), and later by the same author ‘Anwendung der Prinzipien des “Kaffee-Hag”, Urteil des Gerichtshofs der europäischen Gemeinschaften’ [1976] Recht der Internationalen Wirtschaft (RIW/AWD), p. 10 et seq.; E. Kirchner, op. cit.; Wolfgang Hefermehl, Hans-Peter Ipsen, Walter R. Schluep and Günter Sieben, Nationaler Markenschutz und freier Warenverkehr in der europäischen Gemeinschaften (Munich, 1979), with further literature.
See references in footnote 205.
Case 15/74, Centrafarm v. Sterling Drug Inc. (patents) [1974] E.C.R. 1147; and case 16/79, Centra/arm v. Winthrop (trade marks) [1974] E.C.R. 1183 (both cases were concerned with ‘Negram’, an antibiotic for the control of gram-negative bacteria).
3 July 1974, case 192/73, Van Zuylen v. Hag [1974] E.C.R. 371; 8 June 1971, case 78/71, Deutsche Grammophon Gesellschaft v. Metro [1971] E.C.R. 487.
See also, in relation to the trade marks, copyright and marketing practices legislation of Denmark: Court of Justice, 22 January 1981, case 58/80, Dansk Supermarked AS v. Imerco AS [1981] E.C.R. 181.
See Court of Justice, 14 July 1981 (case 187/80, Merck v. Stephan and Exler [1981] E.C.R. 2063), where it is clearly stated that the use by a patentee of his patent to hamper import of a pharmaceutical from a Member State where a patent protection does not exist, if he himself has marketed the product in that Member State, after having brought it onto the market of the Member State where he claims protection, is contrary to Articles 30–36, EEC. This decision is the negation of what was generally believed to underlie the decision of the Court of Justice, 29 February 1968 [1968] E.C.R. 55 (Parke-Davis & Co. v. Probel, case 24/ 67) (see further, P. Eeckman, Industrièle eigendomsrechten en eenheid van de gemeenschappelijke markt’, in Europees Kartelrecht anno 1980 (Deventer, 1981), p. 232).
This is not the case where a trade mark transfer is subject to territorial limitations or the rather exceptional situation of the Hag judgment, 3 July 1974, quoted above.
In this last case there may be an agreement between the legally independent owners as to the exercise of their industrial property rights which exercise is in conflict with Article 85 of the Treaty of Rome or which may constitute an abuse of a dominant position within the meaning of Article 86 of the Treaty of Rome (see the following text).
See W. Hefermehl and K.-H. Fezer in Wolfgang Hefermehl et al., op. cit. p. 59 et seq., in connection with trade mark law.
On the specific functions of Articles 30 et seq. and 85–86, respectively, in relation to industrial property rights see, inter alia, H. Ullrich in GRUR Int. 1975, 291 et seq and H. Johannes in GRUR Int 1975, p. Ill et seq.
See (a) for patent licences: Proposal for a Commission Regulation the Application of Article 85, paragraph 3, of the Treaty to Certain Categories of Patent Licensing agreements, O.J., No. C58/12 3 March 1979 and the Commission decisions of 22 December 1971 (Burroughs v. Delplanque), O.J., No. 13/50, 17 January 1972; 22 December 1971 (Burroughs v. Geha), O.J. No. L13/53, 17 January 1972; 9 June 1972 (Davidson Rubber Co), O.J., No. L143/31, 23 June 1972; 9 June 1972 (Raymond v. Nagoya), O.J. No. L143/?, 23 June 1972, 18 July 1975 (Kabelmetal v. Luchaire), O.J. No. L222/34, 22 August 1975; 25 July 1975 (Bronbemaling v. Heidemaatschappij), O.J. No. L249/27, 25 September 1975; 2 December 1975 (AOIPI Beyrard), O.J., No. L6/8, 13 January 1976; 10 January 1979 (Vaessen/Morris), O.J., No. L19/??, 26 January 1979. (b) For trade mark licences: Decision of 23 December 1977 (Bitter Campari), O.J. No. L70/69.
For transfer of a trade mark, see Decision of 24 July 1974, Advocaat Zwarte Kip, O.J., No. L237/12, 1974.
See also Section 3 (food products), subsection 90, below.
Decision of the Commission of 24 July 1974, O.J., No. L237/12 of 29 August 1974 (Advocaat Zwarte Kip). The criticism of this view by W. Hefermehl (in W. Hefermehl and K.-H. Fezer, op. cit. p. 129): ‘A judgment of this sort does not, however, do justice to the interests of the consumer, to be able to identify the properties of the product by the brand name alone without having to consider further explanations’, is not convincing. If the interests of the consumer are to be considered, different trade marks should be chosen for products with differences of geographical relevance; if the differences are irrelevant there is no good reason from the consumer’s point of view for the use of different trade marks; Hefermehl et al. would have done better to say straightforwardly that they were concerned less with the interests of consumers than with those of the owners of international trade marks.
Centrafarm v. Sterling Drug, supra, grounds 27 and 28.
For example, see Court of Justice, 15 June 1976, case 51/75, EMI/CBS [1976] E.C.R. 811.
See recently, Decision of the Commission of 25 November 1980, O.J. 1980, L377, of 31 December 1980, p. 16 a fine of 200,000 European units of account was inflicted on Johnson & Johnson and three of its European subsidiaries, because they had prevented the export of ‘Gravindex’ pregnancy tests from the United Kingdom to Germany by means of export bans imposed on British and German dealers.
See the study of comparative law by Friedrich-Karl Beier, decisions of the Federal High Court (BGHZ 41, p. 84 and BGHZ 60, p. 185) in the Maja and Cinzano cases.
Court of Justice, 22 June 1976, case 119/75, Terrapin/Terranova [1976] E.C.R. 1039.
Moreover the two trade marks must have different origins (see Court of Justice, 3 July 1974, case 192/73, Van Zuylen v. Hag [1974] E.C.R. 731; see also H. Johannes in RIW/AWD 1976, p. 10 et seq.).
Published in (1979) 10 LLC. 20 et seq.: ‘The Doctrine of Exhaustion in EEC Trademark Law — Scope and Limits’.
29 January 1979 and 25 June 1979. (1979) Revue de Droit Intellectuel, 156, and 1980, p. 1 (repacking by Centrafarm of Lasix and Vibramycin, respectively). See the criticism of this decision by D.W.F. Verkade, ‘Geneesmiddelen en merkenrecht’ in (1981) Gezondheidsrecht, 152.
See e.g. D.W.F. Verkade, loc. cit.
Some of them did, indeed, support the exclusive right to affix the trade mark to the product or the pack on the basis of Article 13A, paragraph 1; see H. Cohen Jehoram (1978) Ars Aequi 646
G. van Hecke and F. Götzen, ‘Overzicht van Rechtspraak’ T.P.R. (1977) 732.
Article 14, Figure 2 (b), states that Figure 1 (the doctrine of exhaustion) does not apply when the condition of the goods is modified or impaired after they have been put on the market, and Figure 2c that there is not exhaustion when the goods have been repackaged under the conditions of the Roche case, see footnote 121.
O.J., No. C351 of 31 December 1980, p. 5.
23 May 1978, case 102/77, Hoffmann-La Roche/Centrafarm (‘Repacking branded products’) [1978] E.C.R. 1139; with regard to this judgment see, inter alia, J. Fr. Verstrynge, ‘Centrafarm Revisited: A few comments on cases, 102/77 and 3/78’ [1979] C.M.L.Rev. 251–285; Baden Fuller, loc. cit.
See also the Centrafarm/AHPC case discussed in subsection 64.
With respect to the necessary condition for a trade mark infringement, that the parallel importer affixes the original mark on a repacked product, it will be very interesting to learn what the Court of Justice will decide in the Pfizer case. Here Eurimpharm GmbH had repacked Pfizer’s products in such a way that the original trade mark was visible through a window in the new outer wrapper (see O.J., No. C21/4 of 30 January 1981, p. 4, case 81/1). At the time of correcting the proofs the decision was taken (in favour of Eurimpharm): 3 December 1981, [1981] E.C.R. 2913.
The Oberlandesgericht Karlsruhe decided in the Valium case, 14 June 1981, (1981) GRUR Int. 567, that Hoffmann-La Roche was entitled to oppose the repackaging by Centrafarm, while artificial positioning of the market in Article 36, second sentence, EEC, supposes that the use of the trade mark constitutes to the maintenance of distribution system that has the object of partitioning markets — a fact that was not proven.
It may be easy to prove the first condition, i.e. that the way in which the trade mark is used leads to the artificial partitioning of markets; see Higher Regional Court, Karlsruhe, 7 July 1978, (1978) GRUR 712 et seq., ‘Valium’, where it was rightly decided that it does not matter whether the use of different pack sizes by the trade-mark owner has the object of masking the market. A disguised barrier to the market is rightly deduced from the objective contribution of the chosen marketing system to sealing off the market, but the parallel importer has to prove that the four conditions have been satisfied, among other things that he has not changed the condition of the goods.
Particularly, the judgment quoted against the background of the law of most, if not all, Member States (see Beier, loc. cit., p. 20 et seq.; according to German law the ‘Kennzeichnungsrecht’ (identification law)).
Higher Regional Court, Hamburg, 6 December 1979 (Reimports of Pharmaceuticals), (1980) GRUR Int. 162.
25 June 1979 (1980) Revue de Droit Intellectuel 1; on the same subject: same Court, 29 January 1979 (1979) Revue de Droit Intellectuel 156 (Lasix).
In a document prepared by Hoffmann-La Roche, Basle, for use in their case against Centrafarm before the German courts (‘Pack sizes for Valium’) the differences in pack size and form of presentation for Valium between the EEC Member States are attributed to, inter alia, different prescribing practices, decisions by the reimbursement organisations (France), the government decision to reduce the price (which led to a drastic increase in the pack size intended for The Netherlands where ‘counting-out’ by the pharmacist is customary) and even, for example in Italy, the absence of patent protection (so that imitators had already accustomed Italy to a different pack size for diazepam when Roche imported their Valium).
Differences in national regulations governing the information to be shown on the pack and/or the leaflet also constitute a technical barrier to trade.
See subsection 55, above.
It is said, for instance, that the Italians have a preference for suppositories which is not shared by other Europeans (Dr. Peter Heer and Dr. Alber Degen of Hoffmann-La Roche, Basle, in a conversation with the author on 30 November 1979).
In Sweden, for example, sweetening agents are prohibited in drugs.
Medisch Farmaceutische Voorlichting, p. 85.
Which?, April 1978, p. 209.
According to P.B. Mertens in a conversation with the author on 11 June 1980.
Although there are as yet no decisions from the Commission on this point; see W. van Gerven, Leerboek Handels-en Economisch Recht, II, (Antwerp, 1978), p. 485.
See subsection 65, below.
See subsection 55, above.
10 October 1978, case 3/78 (Serenid-Seresta) [1978] E.C.R. 1823 et seq.; see, inter alia, Bryan Harris, ‘The exhaustion principle and the Centrafarm Cases’ [1979] E.L.R. 379 et seq.
See footnote 118, subsection 62.
One will notice that in the Hoffmann-La Roche case (on repackaging, see subsection 62) a disguised restriction of trade is accepted when, among other conditions, the use of the trade mark by the proprietor would contribute to an artificial partitioning of the market. It is not clear whether the court meant to add an intentional element for the assessment of any use of trade mark law under Article 36. The not yet decided Pfizer case may bring an answer to this question (but see footnote 123 — it has not). In the meantime the Higher Regional Court of Karlsruhe (in the Hoffmann-La Roche/Centrafarm repackaging case) has answered this question affirmatively (see footnote 124).
See Severin de Wit, ‘Centrafarm III/IV: een merkenrechtelijke ontwikkeling?’, SEW, 1979, p. 472 et seq. According to de Wit the Court still regards the protection of trade-mark owners against competitors who would like to make unauthorised use of the reputation of the trade mark (as in Centrafarm/Winthrop, ground 8) as the specific subject, i.e. the purpose of the right to a trade mark, whereas the essential function of the trade mark is its special effect. The main function is the guarantee of origin, in other words to ensure that the consumer can rely on the source of the product. Functions derived from this are — (1) the quality function: the guarantee that the condition of the goods has not been altered in the intermediate trade (Centrafarm/ Hoffmann-La Roche); (2) the identification function: only the owner of the trade mark may mark his goods. See E.A. van Nieuwenhoven Helbach (1979) SEW, 164 et seq. who, in this respect, sees a development between the H LR and AH PC judgments.
See subsection 104; see also subsection 66 regarding the harmonisation of the law governing pharmaceuticals.
See (1) the first Directive of the Council, dated 26 January 1965, relating to the Harmonization of Laws on Pharmaceutical Products (65/65 EEC), O.J., No. 371, 9 February 1965; (2) second Directive of the Council, dated 20 May 1975, relating to the Harmonization of the Laws on Pharmaceutical Specialities (75/ 319 EEC) O.J., No. L147/13, dated 9 June 1975; (3) Directive of the Council, dated 2 May 1978 to amend the second Directive (75/319 EEC), O.J. No. L123/26, dated 11 May 1978; and also Directive of the Council, dated 20 May 1975, relating to the Harmonization of the Member States’ Legislation in Respect of the Analytical, Toxicological-Pharmacological and Clinical Standards and Regulations concerning Tests of Pharmaceutical Specialities (75/318 EEC), O.J., No. L147/1, dated 9 June 1975; Proposal for a Directive of the Council to amend Directives 65/65 EEC and 75/319 EEC relating to the Harmonization of Laws on Pharmaceutical Specialities, submitted to the Council by the Commission on 2 June 1980, O.J., No. C143/8 of 12 June 1980 (on parallel imports) and another (on the mutual recognition of licences) on 4 December 1980, O.J., No. C189/39 of 30 July 1981. See also footnote 154.
The requirements for obtaining the licences, which are still given, and will be given in the future, on national level, are harmonised in principle (see texts in the preceding footnote). The cited Commission proposal of 4 December 1980 aims at the mutual recognition of licences within the Common Market (see Article 3). The Economic and Social Committee approved this approach in its advice of 27 May 1981 (O.J., No. C189/39 of 30 July 1981). Consumer Organisations and the Consumer Consultative Committee have vehemently opposed this proposal because they fear that producers will register in the Member State(s) with less severe control and thus obtain free circulation for dangerous drugs in the whole community (BEUC News, June 1981, p. 9). It should also be mentioned that, in the meantime, application for licences has already been made easier for the different Member States by the introduction of a new procedure involving the Committee for Pharmaceutical Specialities. See Report of the Commission to manufacturers and importers of pharmaceutical specialities, O.J., No. CI62/3, 2 July 1980.
Court of Justice, 20 May 1976, case 104/75, Adriaan de Peijper, managing director of Centrafarm BV (request for preliminary decision submitted by the Cantonal Court, Rotterdam) [1976] E.C.R. 6130 et seq.
The German and Danish (see, however, for Denmark Commission v. Denmark, case 1981 180, O.J., C268/3 16 October 1980) authorities, on the other hand, have always adopted a lenient attitude to parallel importers who are unable to produce the necessary documents. In France the problem has not yet arisen (Jean Gérard Lieberher, ‘La libre circulation du médicament dans le CEE: les importations parallèles’ (1979) Revue du Marché Commun 225 et seq. In Italy and the United Kingdom (cheap countries) the problem is also unlikely to arise.
See W. van Gerven, ‘The recent case law of the Court of Justice concerning Articles 30 and 36 of the EEC Treaty’ (1977) 14 C.M.L. Rev. 5–24
see also P. Ver Loren van Themaat in a note on the judgment in SEW 1976, pp. 568–570.
De Peijper was prosecuted in Rotterdam particularly because he had no permit for dealing in Valium which he bought in England (more cheaply than in the Netherlands) and repacked for sale in the Netherlands as the generic ‘diazepam’. When, later on, because of the arrangements for reimbursement by the sickness funds de Peijper tried to sell repacked Valium under the original brand name, Hoffmann-La Roche successfully invoked their trade mark rights (see subsection 62, above).
Court of Justice, 28 January 1981, case 32/80 (Kortman), GRUR Int. 1981, p. 39.
Case 191/80, not yet decided, see O.J., 16 October 1980, No. C268, p. 3. This legal obligation has been abolished in the meantime (see M. Hansen and C. Gulmann. ‘Consumer Protection and the Common Market’, Danish Report, FIDE, Dublin, 1982, p. 32.
See references in footnote 145.
O.J., No. C348 of 31 December 1980, p. 40. In the meantime the Commission has withdrawn its proposal and replaced it by a ‘Communication’ in the same spirit (O.J. No. C115/S of 6 May 1982).
See also subsection 68.
For harmonisation of consumer information which is to be inserted in the pack, see subsection 68.
On which the original trade mark could be affixed (for an alternative, see footnote 123).
Greece is not considered here. The Nine, except The Netherlands; see Norbert Reich and Hans W. Micklitz, Consumer Legislation in the EEC Countries; A comparative Analysis (New York/London, 1980), pp. 50–51.
In The Netherlands the Law governing the Supply of Drugs, 28 July 1958, Staatsblad No. 408, makes provision for the establishment of a Board of Inspection to recommend drugs. The implementing order to set up this Board has not yet been made. In fact preventive control has been exercised by the Board of Inspection for the Public Recommendation of Drugs and Cures (KOAGG), which has been in existence since 1974 (R. Overeem, Ontoelaatbare reclame (Zwolle, 1977), pp. 13–14).
Gesetz ‘Zur Neuordnung des Arzneimittelrechts’, 24 August 1976 (AMG 76), paragraphs 10–12; see Hans Rudolf Sangenstedt, ‘Arzneimittelrecht’, in Handbuch des Verbraucherrechts, Neuwied (loose-leaf), Group 270, pp 16–17; also Ulf Doepner, Heilmittelwerbegesetz; (Munich, 1980), passim.
Royal Decree, 24 January 1977, relating to drugs which are the subject of advertising to the public Moniteur Belge January 1977).
Draft ENV/247/78; the four organisations of the Consultative Committee of Consumers again pressed for submission of the proposal in a letter dated 4 December 1979 addressed to Commissioners Burke and Davignon (see Europe, 7 December 1979, No. 2805).
The distribution of samples of new drugs is per se of great informative value, or so it is assessed by doctors (see E Cracco et al. op. cit. p. 34 et seq.). The point is, however, that these samples are almost always distributed in great numbers and over a longer period than is necessary to get to know the product.
Op. cit. p. 143.
See the present French ruling: Code de la Santé Publique, Article 551; on the pack of every drug the generic name, as well as the fantasy name, must be shown in very clear letters (‘en caractères très apparents’). The draft report of the Study Group of the World Industrial Property Organisation on Aspects of Industrial Property in the Protection of the Consumer (Copr 11/2, No. 26) proposed a similar obligation for all products. This proposal was not retained in the final report (quoted in Chapter IV footnote 8).
E. Kaufer, op. cit. p. 169, takes the same view.
Article 13, first Directive 65/65, 26 January 1965, and Article 6, second Directive 319/75, 20 May 1975, only make it obligatory to use the WHO generic name, where there is one, on packs or leaflets; how this name is to be shown is not determined.
Although it has no useful references to the national price regulations assessed, see Ernst-Joachim Mestmäcker, Vereinbarkeit von Preisregelungen auf dem Arzneimittelmarkt mit dem Recht der Europäischen Wirtschaftsgemeinschaft (Baden-Baden, 1979), pp 14–15; for a description of the Belgian law see Jules Stuyck, ‘De Prijzenwet Farmaceutica van 9 juli 1975’, Rechtskundig Weekblad, 1975–76, column 623 et seq. and ‘De Prijzenwet Farmaceutica van 9 juli 1975 — Uitvoeringsbesluiten’, Rechtskundig Weekblad, 1975–76, column 1845 et seq. For the attitude of the Commission to the current price regulations for pharmaceuticals in France, Belgium, the United Kingdom and Italy, see the reply to written question No. 1094/78 put by Mr. Jahn, O.J., No. C133/9, 28 May 1979. This reply shows that the Commission considers that the Italian ruling (fixing the prices of imported products at the level of domestic equivalents) to be in conflict with Article 30 of the EEC Treaty; on 7 March 1979 it instituted proceedings for infringement against the Italian Government on the grounds of Article 169 of the EEC Treaty; see also Le Monde, 7 March 1980, on the subject of a prospective amendment of the French ruling.
This has already been partially done in Belgium (see footnote 47). In The Netherlands (see Advies inzake kostenbeheersing geneesmiddelenvoorziening, p. 27) and Germany this is being considered by the insurance organisations (see the reaction of the pharmaceutical industry in Medikament und Meinung, published by the Federal Association of the Pharmaceutical Industry, 16 June 1980, p. 1).
Court of Justice, 13 February 1979, case 85/76, Hoffmann-La Roche/Commission [1979] E.C.R. 461.
See Commission decision of 25 November 1980 (Johnson & Johnson) O.J., No. L377/16, 31 December 1980. Checking’against Articles 30–36 as described above can only be coincidental for the Court (on this and the consequent importance of Article 85 as an instrument of policy, see subsection 59, above).
Particularly through the item ‘fixed costs for research and development’ (E. Kaufer, op. cit. p. 164).
Apart from the examples of Germany and The Netherlands dealt with subsequently, attention may be drawn to France where the Minister of Social Security gets the Commission (‘BURG’) to fix the prices of pharmaceuticals eligible for reimbursement, recently renamed ‘Commission de la Transparence’ (cf. the German Transparenzkommission’). The work of this Commission will include, inter alia, comparing new products with existing ones and, in particular, advising on the lists to which drugs should be allocated with the corresponding costs of equivalent preparations for the attention of medical practitioners. In other words, doctors are to be encouraged to select the cheapest of the various bio-equivalent products. In other words, concludes the author of the report (André Dessot), the Minister is urging the preparation of generics (Le Monde, 7 March 1980).
Medikament und Meinung, 16 June 1980, p. 1.
‘Wettbewerb underwünscht’, Der Spiegel, No. 23, 2 June 1980.
Ibid.; this is a general requirement in German law for comparable product tests (see Baumbach-Hefermehl, Wettbewerbsrecht (13th ed., Munich, 1981), subsections 359–361 in Paragraph 1, UWG).
In Belgium, for example, Article 2, Royal Decree No. 78 of 10 November 1967 on the practice of medicine (Moniteur Belge, 12 June 1968); in The Netherlands, see Article 19, Decree on the Practice of Pharmacology.
C.M. Denk (1981) GRUR Int. 47.
Advies inzake kostenbeheersing geneesmiddelenvoorziening, issued by the Sickness Fund Council, 1980, No. 119, p. 31.
Ibid.
16 April 1981, Gezondheidsrecht, 1981, p. 177.
Gezondheidsrecht, 1981, p. 179.
Directive of the Council, 18 December 1978, O.J., No. L33/1, 8 February 1979.
Data taken from Gérard Carreau, l’Agrobusiness (Paris, 1977), p. 27 et seq. and p. 120 et seq.
See examples for the Federal Republic of Germany in Otto Blume, Gislinde Müller and Burkhardt Röper, Werbung für Markenartikel, Auswirkungen auf Markttransparenz und Preise (Göttingen, 1976), Part A, p. 62 et seq. See also EEC Commission studies on concentration in the foods sector in the Member States (1976).
Such as tobacco and alcoholic drinks which, for the sake of convenience, will be classified here with foods in the usual way.
Otto Blume, Gislinde Müller and Burkhardt Röper, Werbung für Markenartikel, Auswirkungen auf Markttransparenz und Preise (Göttingen, 1976), Part B, pp. 329–330.
Cf. a study by John Madell, Managing Director at Boase, Miami Pollit Uni vas Agency in London, discussed in the Financial Times, 13 March 1980 (‘How the odds are loaded — New Products: How many new food brands survive to show a profit? The answer is: even fewer than you think’). On average 70 new names are launched each year in the United Kingdom. Most of the successful innovations are achieved by using existing technology and materials.
See subsection 19, above.
For a comparison between the new French eating habits and those of the Chinese city of Hangchow in the thirteenth century, see Emma Rothschild, Hangchow retrouvé, 2 London Review of Books, No. 10 (22 May to 4 June 1980), pp. 3–5.
See Test-Aankoop (Test-Achat), December 1979, p. 24 et seq. A cognac-tasting test produced results which, with a few exceptions, were in no way related to prices and indications of quality.
This last point may be doubted in other countries; health advertising for margarine which has been the subject of so much criticism (see below) indeed points the other way.
See e.g. the list of foodstuffs for which there exists harmonisation at the European level in Alain Gerard, ‘Les directives de la Communauté économique européenne visant au rapprochement des législations des états membres dans le domaine des produits alimentaires (état au 30 juin 1980)’ (1980) 5 Bulletin de AEDA, Nos. 3–4.
This was said as early as 1960 by Peter Brückner, Die informierende Funktion der Wirtschaftswerbung (Heidelberg), p. 34, quoted in O. Blume, op. cit., p. 199.
See footnote 182.
On this point see Jules Stuyck, ‘Der Vorschlag einer EG-Richtlinie zur Harmonisierung des Werberechts’, ZVP/JCP, 1979, p. 328.
H. B. Thorelli and S. V. Thorelli, Consumer Information System and Consumer Policy (Cambridge, Mass., 1977); see also by the same authors, ‘Les systèmes d’Information des Consommateurs dans l’Avenir’, in L’Information des Consommateurs Colloque organisé par la CEE avec la collaboration de VU CL et l’ERACA (Brussels, November 1977), ENV/27/80 (also available in English and German).
‘Verbesserungsmöglichkeiten der Verbraucher information durch Berücksichtigung verhaltenstheoretischer Erkentnisse’, ZVP/JCP, 1978, p. 24 et seq.
The prohibition does not apply to mineral water! (same Article). According to the procedure laid down by Article 100 of the Treaty the Council establishes a non-restrictive list of the claims which must be prohibited or limited in all cases (Article 2, Figure 2). See the Commission proposal for such a list in O.J., No. C198/4 of 6 August 1981. For an example of a national list which anticipated the Community list — and in view of the non-limitative nature of the latter list was able to anticipate it without any problems — see the Belgian Royal Decree, 17 April 1980 (Moniteur Belge, 8 May 1980), amended in Royal Decree, 17 July 1980 (Moniteur Belge, 5 August 1980), which was drawn up unusually quickly on account of the farmers’ protest against the health argument in the advertising for margarine (see J. Stuyck, ‘De Beigen rond en gezond?’, Trends, 1 September 1980, p. 141). On these Royal Decrees see J. Stuyck, Levensmiddelen en Tabak: Etikettering en Reclame (Antwerp, 1981) and J. Stuyck in R.W., 1980–81, col. 1147–1158.
O.J., No. C194/3, 1 August 1979. See J. Stuyck, article citen, ZVP/JCP, 1978, p. 334.
On the possibility of invoking this obligation of proof from a regulation sanctioned under the penal code in suspension proceedings before the President of the Commercial Court, see my book and article referred to in footnote 198.
Law for the Reform and Revision of the Law on Trade in Foodstuffs, Tobacco Products, Cosmetics and Other Requisites, 15 August 1974, BGB, I, p. 1945.
In addition to Article 4 (1) of the Belgian Royal Decree, 17 April 1980, compare Article 4 (5) of the same Decree: ‘it is forbidden to mention the effect of foodstuff on the metabolism or health if this claim cannot be proved’. It should also be mentioned that statements regarding the cure or prevention of illnesses are prohibited in both countries paragraph 18, LMG; Article 2, Royal Decree, 17 April 1980).
See footnote 198.
See footnote 198 in fine.
Court of Justice, 20 February 1979, REWE-Zentrale AG v. Bundesmonopolverwaltung für Branntwein, case 120/78 [1979] E.C.R. 649 et seq.; better known as the Cassis de Dijon case; see also cases 788/97 of 26 June 1980 (Gilli) [1980] E.C.R. 2071; case 27/80 of 16 December 1980 (Fietie) and 53/80 of 2 February 1981 (Eyssen) [1981] E.C.R. 409, and the Communication of the Commission on the conclusions to be drawn from the Cassis de Dijon Judgment, O.J. No. 2 56/2 of 3 October 1980.
The right to oppose imports of products of different quality which the trade-mark owner himself has marketed abroad under the same trade mark is not always denied the trade-mark owner by national courts; this right was, in fact, denied in the Federal Republic of Germany by the Federal High Court, 2 February 1973, BGHZ 60, 185, and GRUR Int. 1973, p. 562, Cinzano, but not by the Ghent Court of Appeal (Belgium), 5 June 1970, R.W., 1971–72, col. 762 (Canned Soup judgment); see M. Götzen, R.W., 1971–72, col 741 et seq.
Decision of the Commission, 24 July 1974, O.J., No. L273/12, 29 August 1974 (Advocaat Zwarte Kip). See the comments made by Hefermehl and Fezer on this decision in footnote 108, above. On this subject and the way in which this decision fits into the system of the Commission and the case law of the court, see L. Ludding, Het mededingingsrecht in de EEG en de rechten van industriële en commerciale eigendom (Deventer, 1979), p. 105.
Van Zuylen v. Hag (Court of Justice, 3 July 1974, case 192/73 [1974] E.C.R. 731 et seq.); see also the informal intervention of the Commission regarding the ‘Persil’ trade mark, which belongs to both Unilever and Henkel: Seventh Report on Competition Policy (Brussels, 1978), p. 120; see L. Ludding, op. cit., footnote 143 on pp. 151–152.
In support of this: Hartmut Johannes, RIW/AWD, 1976, p. 10 and Röttger, ‘Kollision von identischen oder verwechslungs fähigen Warenzeichen ...’, RIW/AWD, 1976, p. 354. There are many opponents. The most prominent include F.-K. Beier, ‘Unterschiedliche Zusätze als Mittel zur Lösung marken- und firmen-rechtücher Konflikte im Geneinsamen Markt’, RIW/AWD, 1978, p. 213, and W. Hefermehl, Hefermehl et al., op. cit., p. 17, footnote 21.
On this point see Ulf Bernitz, Svensk och internationell Marknadsrätt (A. Uppl., Stockholm, 1973), p. 139 et seq.; ‘Den nya marknadsföringslagen’ (Supplement till U. Bernitz, Svensk etc.) (Stockholm, 1976)
in German: U. Bernitz in Zeitschrift für das Gesummte Handelsrecht (1974), p. 33 and Rabeis, 1976, p. 593; in English: in Scandinavian Studies in Law (1976), p. 16; in Dutch: J. Stuyck, in T.P.R., 1977, p. 403 et seq.
The whole story is taken from Ulf Bernitz and Lars Pehrson, ‘Problemet märkesdifferentiering’, NIR, 1978, p. 214 et seq. See also Ulf Bernitz, ‘Brand Differentiation between Identical Products. An Analysis from a Consumer Viewpoint’, ZVP/JCP, 1981, p. 21 et seq.
p. 490 et seq.
Federal Republic paragraph 2, 4–29, Law on the Overall Reform of the Food Law, 15 August 1974 (hereinafter LMBG); Article 6, Belgian Law of 22 January 1977 on the Protection of the Health of the Consumer in Relation to Foodstuffs and Other Products; Luxembourg Law of 1953 ‘ayant pour objet la réorganisation du contrôle des denrées alimentaires, boissons et produits usuels’; The Netherlands: Warenwet 1935 as amended by Act of 21 December 1972 (Staatsblad 730) and royal Decree of 26 March 1921 as amended (see L. Dommering, R. Duk, E. H. Hondius, Consumentenrecht: Handleiding voor de Praktijk, B 1050).
Directive, 27 July 1976, No. 76/768 EEC, O.J., No. 262/169, 25 September 1976.
For France see Article L658–3, Code de la Santé publique, Loi No. 75–604 du 10 juillet 1975 modifiant le livre V du Code de la Santé Publique; Décret No. 77–1558, 28 décembre 1977, Journal Officiel, 25 January 1978, p. 497; for Italy: N. Reich and Hans-W. Micklitz, Consumer Legislation in the EEC Countries: A Comparative Analysis (New York/London, 1980), No. 90, pp. 81–82, and G. Ghidini, Consumer Legislation in Italy, (New York/London, 1980), pp. 61–62.
By virtue of Article 6, paragraph 3, Law of 24 January 1977, and paragraph 26(1), LMBG.
See, for example, paragraphs 27 and 29, German LMBG: Articles 2 and 3, Belgian Royal Decree, 17 April 1980.
Article 28, LMBG: cf. Article 6 of the Directive relating to Cosmetics and the identical Article 3, paragraph 1, Belgian Royal Decree, 10 May 1978, relating to Cosmetics (Moniteur Belge, 1 September 1978); for France, see the next subsection.
Journal Officiel, 5 May 1977, p. 2575.
The care cosmetics include cleansing (soap, shampoo, etc.), protection from external damage (e.g. excessive exposure to sunlight), the supply of moisture, the removal of grease and making good a lack of oils (skin creams). The decorative cosmetics (beauty preparations) include make-up, nail lacquer, eye shadow, hair-sprays; see Professor C.E. Orfanos, Erläuterungen zur pflegenden Kosmetik, unpublished study on behalf of the Arbeitsgemeinschaft der Verbraucher (AgV), Bonn (Cologne University, 28 September 1977). In the Federal Republic of Germany alone, for instance, there are more than 600 sunburn preparations on the market (source: Stiftung Warentest).
See also Eike von Hippel, Verbraucherschutz (2nd ed., Tübingen, 1979), p. 72.
See, for example, paragraph 17, LMBG; Article 4, Decree No. 77–469; Article 4, Belgian Royal Decree, 10 May 1978; regulations of this nature are not mandatory in the European Directive but they are permitted (see Article 6, Figure 2).
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Stuyck, J. (1983). Product Differentiation in Certain Sectors: Pharmaceuticals, Foodstuffs, Cosmetics and Maintenance Products. In: Product Differentiation in Terms of Packaging Presentation, Advertising, Trade Marks, ETC.. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4456-0_3
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