This article takes a look at the decision in Makro Zelfbedieningsgroothandel CV, Metro Cash & Carry BV, Remo Zaandam BV v Diesel SpA (‘Makro’).
Makro sought to clarify the interpretation of article 7 of the Trade Mark directive, article 7 reads:
1. The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
2. Paragraph 1 shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialization of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.
The European Court of Justice (ECJ) found that article 7 meant that consent of a trade mark proprietor to the marketing of his wares to which he affixes his trade mark, can be implied from the facts that show that the proprietor has exhausted his exclusive right in that name for that product.