Background

Economic theory of vertical restraints

Economic theory and competition law

Should distributors have more protection?

Vertical restraints put to the test of economic analysis

Structure of distribution law - Book plan

General bibliography

Introduction

Localizing the anticompetitive effects

Effect on trade between Member States

Scope ratione loci

Concept of an undertaking

Intra-group agreements

Scope ratione personae

Applicability of competition law to vertical agreements

Definition of the relevant market

Anticompetitive object or effect

Appreciability threshold

Concept of agreement and concerted practice

Prohibition of vertical restraints

Block exemptions

Individual exemptions and rule of reason

Exemption of vertical restraints

Control of vertical restraints

Prohibition

Exoneration

Restrictive agreements

Principle

Applications

Abuse of dominant position

Exclusive purchase/Exclusive supply

Resale outside network

International agreement

Exclusive distribution agreements

Manufacturer's guarantee

Protection of the brand

Protecting the network against third parties

Relations between the parties

Selective distribution

Hardcore restrictions

Individual exemptions

Rule of reason

Prohibition of restrictive agreements and individual exemptions

Distribution of new motor vehicles : Regulation No 330/2010

After-sales : Regulation No 461/2010

Block exemption

Motor vehicle distribution agreements

Merger control

Franchising

Commercial agency and competition

EU harmonization

International agency

Commercial agents

This book provides a wide-ranging review of the European rules relating to distribution: exclusive purchase and exclusive supply, exclusive and selective distribution, motor vehicle distribution, franchises, commercial agents.

European Distribution Law

Selective distribution mainly concerns well-known, quality branded products. The protection of the network may therefore to some extent be ensured by the EU legislation relative to trade mark protection. The rights conferred by the trade mark do not, however, allow its holder to prohibit its use for products which have been marketed under that trade mark in the European Economic Area. Those rights …

Selective distribution mainly concerns well-known, quality branded products. The protection of the network may therefore to some extent be ensured by the EU legislation relative to trade mark protection. The rights conferred by the trade mark do not, however, allow its holder to prohibit its use for products which have been marketed under that trade mark in the European Economic Area. Those rights are exhausted from the moment the product covered by the trade mark is marketed with the consent of the holder, directly or through an intermediary. 

According to the Court of Justice, in application of Articles 5 and 7 of Directive No 2008/95 of 22 October 2008 , repealed and replaced by Directive 2015/2436 of 16 December 2015, where a manufacturer has agreed for its product to be marketed, he cannot later oppose either the further marketing thereof or the use of its brand in an advertisement .  Referred to for a preliminary ruling, the Court of Justice has held that the sale by a third party which is not part of the network of perfume testers, purchased from members of the selective distribution network who received them from the supplier without transfer of ownership and with the statement “not for sale”, cannot be regarded as covered by the principle of exhaustion of brands . A manufacturer who markets its products outside the EEA, excluding all Member States, does however retain the rights conferred by the trade mark with regard to resale by non-authorized distributors in that zone . The Court of Justice has in effect refused to lay down a principle of international exhaustion of the trade mark holder's rights . The consent to the marketing in the EEA must be positively expressed and cannot be inferred from the mere silence of a trade mark proprietor . More recently, the Court has clarified the burden of proof regarding the trademark owner's consent to the marketing of its products in the EEA. According to the Court, where the proprietor operates a selective distribution system under which the products bear no markings enabling third parties to identify the market on which they are intended to be marketed, and refuses to communicate this information to them, it is incumbent on him to establish that he has carried out or authorized the first putting into circulation of copies of the products concerned outside the territory of the Union or that of the EEA. If such proof is provided, it is up to the defendant in the infringement action to prove that these same products were subsequently imported into the EEA by the trademark owner or with his consent .

The trade mark proprietor also has the right to control the first occasion of the marketing of its product in the EEA. The proprietor is entitled to prevent all third parties not having his consent from using his trade mark in the EEA in application of Article 10 of Directive No 2015/2436 . The proprietor is also entitled to protect the reputation of the brand by asserting legitimate grounds such as damage to the reputation of the trade mark . Only objective damage to the image of the trade mark may prevent the effects of the exhaustion of rights. The proprietor of a trade mark can therefore prohibit a third party from using the mark for the purpose of informing the public that he is a specialist of the mark concerned, where it is used in a way that may create the impression that there is a commercial connection between the other undertaking and the trade mark proprietor . It is also possible for the proprietor of the trade mark of a luxury perfume to oppose its use by a parallel importer who has advertised the further commercialization of those goods, where the advertising seriously damages the reputation of the trade mark .

Finally, under Article 9(3)(b) of Regulation No 2017/1001 of 14 June 2017 on the European Union trade mark, the exclusive rights conferred on the trade mark owner enable him to oppose the offering, putting on the market or “stocking” of products for those purposes without his consent. The Court of Justice has declared that those provisions do not apply to an online platform which, on behalf of a third-party seller, stores goods which infringe the trade mark rights of a selective distribution network without being aware of that infringement. Indeed the platform cannot be regarded as “stocking” those goods for the purposes of offering or putting them on the market if it does not itself pursue those aims .

Replacing Directive 89/104 of 21 December 1988.

Case C-337/95 Parfums Christian Dior [1997] ECR I-6013, LawLex200500005099JBJ. 

Case C-567/18 Coty Germany GmbH  c. Amazon Services Europe Sàrl, Judgment of 2 April 2020, .

Case C-127/09 Coty Prestige Lancaster Group, LawLex201000000967JBJ.

Case C-355/96 Silhouette International Schmied GmbH & Co [1998] ECR I-4799, LawLex200900000463JBJ.

Case C-173/98 Sebago [1999] ECR I-4103, LawLex200900000728JBJ: rights conferred by the mark are exhausted only if the products have been put on the market in the Union with the proprietor's consent; compare with Case C-306/96 Javico v Yves Saint Laurent Parfums [1998] ECR I-1983, LawLex200400003612JBJ: the existence of a lawful distribution system does not justify the prohibition of direct sales of the contractual product in, and re-exports to the Union imposed on a distributor based in a third country.

See also Case C-414/99 Zino Davidoff [2001] ECR I-8691, LawLex200900000760JBJ.

Case C-367/21 Hewlett Packard Development Company LP, Judgment of 18 January 2024, LawLex202400006915JBJ.

Case C-414/99 and C-416/99 Zino Davidoff [2001] ECR I-8691, LawLex200900000760JBJ; Case C-59/08 Copad SA v Christian Dior [2009] ECR I-3421, LawLex201000000965JBJ.

European Distribution Law

79. Protection of the brand

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

79. Protection of the brand

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise