Parallel imports

Foreword Parallel Imports: An overview of EU and national case law

Since the last special edition of e-Competitions on restrictions of parallel trade, there have been a number of national competition authority cases that have helped clarify and confirm this area of antitrust law. Often these have been in familiar sectors where parallel trade has been in the spotlight historically, such as pharmaceuticals and household products. We highlight some of the most interesting ones below. And in a world where offline and online channels overlap and the treatment of online sales has particular implications for the assessment of trade restrictions, perhaps of most significance overall has been the European Commission’s decision in Guess and the new Vertical Block Exemption Regulation (‘‘VBER’’), which came into force on 1 June this year. Trademark exhaustion has also regularly come up in the context of parallel trade restrictions and we highlight a number of recent cases in this foreword. Brexit, of course, has brought trade between the UK and European Union into sharp focus, also with respect to trademark exhaustion. Here the future remains somewhat uncertain, as we discuss below.

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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 79 contributions 60493 visits
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 8 contributions 4785 visits

Anticompetitive practices

 The Swiss Competition Authority fines a German tobacco producer for a longstanding vertical distribution agreement which sought to secure absolute territorial protection (Pöschl)
Lenz & Staehelin (Zurich)
Switzerland 1 contribution 694 visits
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Lenz & Staehelin (Zurich)
Switzerland 11 contributions 2559 visits
Competition Commission penalises German tobacco company for territorial restrictions in distribution agreements* The Competition Commission (ComCo) has once again imposed penalties on a foreign company for including/maintaining absolute territorial protection clauses in its distribution (...)

The OECD holds a roundtable on competition issues in books and e-books
OECD - Competition Division (Paris)
France 313 contributions 1439541 visits
The books and e-books markets are characterised by public intervention to pursue cultural policy objectives, such as to promote reading as well as the quality and diversity of books. Competition authorities in some jurisdictions participate in the policy debate, for instance by advocating (...)

The Danish Competition Authority approves a merger between two national pharmaceutical companies subject to conditions (Orifarm / Takeda)
Danish Competition and Consumer Authority (Copenhagen)
Denmark 133 contributions 36333 visits
The Danish Competition Council has approved Orifarm’s acquisition of certain assets from Takeda subject to commitments* The Danish Competition Council has approved Orifarm Generics Holding’s (hereinafter “Orifarm”) acquisition of certain assets, including a product portfolio consisting of (...)

The EU Commission opens an investigation into possible trade restrictions by one of the largest producers of chocolate, biscuits, and coffee in the Union (Mondelēz)
European Commission - DG COMP (Brussels)
Belgium 1362 contributions 2930177 visits
Antitrust: Commission opens formal investigation into possible trade restrictions by Mondelēz* The European Commission has opened a formal antitrust investigation to assess whether Mondelēz has restricted competition in a range of national markets for chocolate, biscuits and coffee by (...)

The Hellenic Competition Authority finds two companies guilty of an anticompetitive vertical agreement for prohibiting parallel imports in the market for artificial kidney machines (Gambro Lundia / Medical Products)
Hellenic Competition Commission (Athens)
Greece 132 contributions 18403 visits
Decision regarding the complaints of the company SERKO LTD* Subject: Decision of the Hellenic Competition Commission regarding the complaints of the company "SERKO LTD SCIENTIFIC - ELECTRONIC MACHINERY (Imports - Representations - Service)" concerning alleged infringements of articles 1 and (...)

The Israeli Competition Tribunal upholds the Competition Authority’s instruction prohibiting an importer from reporting to a multinational consumer products company on parallel imports of the company’s toothpaste (Schestowitz / Colgate-Palmolive)
Israel Competition Authority (Jerusalem)
Israel 17 contributions 2188 visits
The Competition Tribunal has confirmed an instruction of the Director-General, which prohibits Schestowitz from reporting to Colgate-Palmolive on parallel imports of Colgate toothpaste* The Competition Tribunal granted the force of a judgment to a new instruction of the Director-General to (...)

The Guangzhou Intellectual Property Court rules on its first trademark infringement and unfair competition case regarding parallel imports, in which it finds such acts should constitute neither trademark infringement nor unfair competition (Opel Electric / Guangdong Shifu Electric)
King & Wood Mallesons (Beijing)
China 1 contribution 392 visits
First Trademark Infringement and Unfair Competition Case regarding Parallel Import Concluded by Guangzhou IP Court* Recently, Guangzhou IP Court ruled on its first trademark infringement and unfair competition case regarding parallel import, in which it found such acts should neither (...)

The Chinese State Administration for Market Regulation releases antitrust guidelines for the automotive industry
King & Wood Mallesons (Beijing)
Chine 19 contributions 4756 visites
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Shihui Partners (Beijing)
China 2 contributions 339 visits
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King & Wood Mallesons (Beijing)
China 2 contributions 339 visits
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China’s Auto Antitrust Guidelines Released to the Public* On 20 February 2020, in his annual review “Dedicated to Fair Competition and Serving Reform and Development – Overview of Antitrust Work in 2019”, Mr. Wu Zhenguo, the Director of the Anti-monopoly Bureau (“AMB”) of the State (...)

The Chinese State Administration for Market Regulation publishes guidelines for the automobile sector
AnJie Broad Law (Beijing)
China 44 contributions 12579 visits
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AnJie Broad Law (Beijing)
China 15 contributions 1934 visits
Implications of China’s Antitrust Guidelines for the Automobile Sector on Regulation of Vertical Restraints* The automobile industry has been under the radar of China’s antitrust enforcement for a number of years. Since 2014, the agency had successively issued fines against many players in (...)

The Turkish Competition Authority fines a Dutch company for obstructing parallel trade in the National energy solution market (Arti Marin / Mastervolt / Eltesan)
Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
Turkey 20 contributions 4590 visits
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ACTECON (Istanbul)
Turkey 12 contributions 2931 visits
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ACTECON (Istanbul)
Turkey 8 contributions 2014 visits
Introduction On 29.01.2020, Turkish Competition Authority (“TCA”) announced its final decision (“Final Decision”) concerning the investigation conducted against Artı Marin Mobil Enerji Sistemleri Inc. (“Artı Marin”) and Mastervolt International Holding BV (“Mastervolt”), a Netherlands based (...)

The Barcelona Court of Appeal applies a narrow reading of the exhaustion principle to trademarks with a common origin (Schweppes / Red Paralela)
Van Bael & Bellis (Brussels)
Belgium 163 contributions 56375 visits
On 22 July 2019, the Barcelona Court of Appeal (“Audiencia Provincial de Barcelona”) delivered a judgment on an appeal by Schweppes SA (“Schweppes”) against a judgment of the Commercial Court of Barcelona in which it held that the evidence provided by Red Paralela, a parallel importer, was (...)

The EU Commission fines a maker of sports apparel €12M for concluding anticompetitive parallel imports agreements (Nike)
Portolano Cavallo (Milan)
Italy 63 contributions 10347 visits
On March 25, 2019, the European Commission announced the € 12,555,000 fine issued to Nike for breaching European Union and European Economic Area (EEA) competition rules through its licensing and distribution agreements with resellers, more specifically for prohibiting merchants from making (...)

The Egyptian Competition Authority decides to invalidate clauses between a Big Tech company and its distributors for exclusive agreements considered as restrictive (Apple)
Egyptian Competition Authority (Cairo)
Egypt 5 contributions 1628 visits
Unofficial convenience translation: In case of any discrepancy in this translation the Arabic wording only would prevail.* The Board of Directors of the Egyptian Competition Authority (“ECA”) has decided that Apple and its distributors have infringed the Egyptian Competition Law (“ECL”). The (...)

The Ankara Seventh Administrative Court annuls the Turkish Competition Authority’s dismissal decision regarding the restriction of parallel imports allegations faced by a company in the market of energy systems (Arti Marin / Mastervolt / Eltesan)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
Turkey 173 contributions 83962 visits
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
Turkey 22 contributions 5697 visits
The Ankara 7th Administrative Court (“Court”) annulled the dismissal decision of the Turkish Competition Board (“Board”) concerning the allegations that Mastervolt International Holding B.V. (“Mastervolt”) and its exclusive distributor in Turkey, Artı Marin Elektrik Dış Tic. Ltd. Şti. (“Artı (...)

The OECD holds a roundtable on e-commerce
OECD - Competition Division (Paris)
France 313 contributions 1439541 visits
1. Introduction 1. E-commerce – broadly, buying and selling online – is a global phenomenon and an important expanding distribution mechanism across the OECD. During the last decade, e-commerce activities have been growing both in the demand and supply side, as seen by the increasing number (...)

The EU Court of Justice clarifies exhaustion of trademark principles and broadens the interpretation of economic links between trademark owners (Schweppes / Red Paralela)
Van Bael & Bellis (Brussels)
Belgium 163 contributions 56375 visits
On 20 December 2017, the Court of Justice of the European Union (“ECJ”) handed down its judgment in Case C-291/16 Schweppes v Red Paralela and Others. The ECJ held that the owner of a trademark may not oppose the parallel importation of goods bearing an identical trademark but originating in (...)

The Belgian Commercial Court in Gent rules that a claim for damages is not time-barred as it had been filed while an appeal against the Competition Authority decision was still pending (Herman Verboven / Honda Motor Europe Logistics)
Houthoff Buruma (Brussels)
Belgium 3 contributions 71 visits
Brief summary of facts The claimants are independent importers of motorcycles of different brands. Honda required such independ importers (also called parallel importers) to obtain a certificate of conformity from Honda for each motorcycle they wanted to import, to ensure that each (...)

The Spanish Competition Authority clears a dual pricing system (Pfizer / Cofares)
Callol, Coca & Asociados (Madrid)
Spain 170 contributions 47188 visits
On 19 January 2017 the Spanish Competition Authority (SCA) issued a decision clearing PFIZER of antitrust charges and blessing PFIZER’s dual pricing system (SCA Decision). In 2009, the SCA decided (First Decision) to close the antitrust investigation against COMPAÑÍA FARMACÉUTICA ESPAÑOLA, (...)

Parallel Imports: An overview of EU and national case law
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 79 contributions 60493 visits
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Belgium 8 contributions 4785 visits
Since the last special edition of e-Competitions on restrictions of parallel trade, there have been a number of national competition authority cases in the good old familiar sectors – for example the automotive or fast moving consumer goods sectors. Where the foreword to the last special (...)

The Hellenic Competition Authority fines a company for abusing its dominant position and extends parent liability for competition law violations in the detergents, cleaners and cosmetics sector (Colgate / Palmolive)
Kyriakides Georgopoulos (Athens)
Greece 62 contributions 2490 visits
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Zepos & Yannopoulos (Athens)
Greece 28 contributions 1003 visits
Vertical Agreements Restriction of parallel trade clauses in Colgate’s vertical agreements with retailers – Parental liability (HCC 610/2015) In 2017, the HCC published its decision against members of the COLGATE-PALMOLIVE group of companies pursuant to an ex officio investigation in the (...)

The Slovak Competition Authority publishes a working draft of its views on vertical competition issues
Diwok Hermann Petsche (Baker McKenzie Vienna)
Austria 7 contributions 2344 visits
Introduction The Competition Authority of Slovakia ("SCA") published on 4 February 2015 a working draft of the Standpoint on Vertical Agreements ("Standpoint") and invited the relevant public to discuss the main ideas outlined in the Standpoint. The Standpoint has been published in the (...)

Unilateral Practices

 The EU Commission issues a Statement of Objections to clothing retailers for implementing anticompetitive cross-border sales restrictions (Pierre Cardin / Ahlers)
Van Bael & Bellis (Brussels)
Belgium 11 contributions 2508 visits
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Van Bael & Bellis (Brussels)
Belgium 174 contributions 58456 visits
Main take-aways Pierre Cardin and its licensee Ahlers receive statement of objections; Commission recognises its limited ability to tackle unilateral territorial supply constraints; Pending investigation of Mondelēz covers both collusive and unilateral (possible) restraints; Forthcoming Valve (...)

The Ankara 8th Regional Administrative Court reverses the 13th Administrative Court’s decision that annulled the Turkish Competition Authority’s decision on an exemption application of an FMCG company for its selective distribution agreement (Johnson & Johnson)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
Turkey 173 contributions 83962 visits
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
Turkey 22 contributions 5697 visits
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
Turkey 2 contributions 248 visits
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This article aims to provide a case analysis of the Ankara 8th Regional Administrative Court’s (“Regional Court”) judgement annulling Ankara 13th Administrative Court’s (“Administrative Court”) judgement that annulled the Turkish Competition Board’s (“Board”) Johnson&Johnson Sıhhi Malzeme (...)

The Danish Maritime and Commercial High Court confirms the Competition Authority’s decision stating that a German engine manufacturer abused its dominant position (Deutz / Diesel Motor Nordic)
Danish Competition and Consumer Authority (Copenhagen)
Denmark 133 contributions 36333 visits
Danish Maritime and Commercial High Court: Deutz and Diesel Motor Nordic infringed competition legislation by preventing the supply of spare parts for the IC3-trains* On 11 January 2021, the Maritime and Commercial High Court has confirmed that Deutz abused its dominant position by refusing (...)

The Danish Maritime and Commercial High Court confirms a decision of the Competition Authority finding that a German internal combustion engine manufacturer had both abused its dominant position and entered into an anti-competitive agreement with its Danish dealer (Deutz / Diesel Motor Nordic)
Aquis Exchange
United Kingdom 12 contributions 2192 visits
On 11 January 2021, the Danish Maritime and Commercial High Court (“MCC”) confirmed a decision of the Danish Competition Council (“DCC”) finding that the German internal combustion engine manufacturer Deutz had both abused its dominant position and entered into an anti-competitive agreement (...)

The Danish Maritime and Commercial High Court upholds the Competition Authority’s decision finding an abuse of dominance and an anti-competitive agreement between a German internal combustion engine manufacturer and its national distributor in the railway sector (Deutz / Diesel Motor Nordic)
Bird & Bird (Copenhagen)
Denmark 36 contributions 8310 visits
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Bird & Bird (Copenhagen)
Denmark 23 contributions 2611 visits
The case centred around a consortium that was handling the renovation of the engines of the IC3 trains of the Danish State Railways. A member of the consortium, Fleco ApS (Fleco), was in several ways restricted from buying spare parts to be used in the renovation of the train engines. The (...)

The Cypriot Competition Authority fines a chemical and consumer goods company €3.3M after finding that its exclusionary practices amounted to an abuse of dominance through portfolio effects in the wholesale market for heavy-duty detergents (K.A.C. Constantinides Trading / GPM-Henkel)
Antoniou McCollum & Co. (Nicosia)
Cyprus 15 contributions 16927 visits
The Cypriot Commission for the Protection of Competition (CPC) found that exclusionary practices on the part of a dominant undertaking in the wholesale market for heavy-duty detergents amounted to an abuse of a dominant position. Henkel AG & Co KGa, a chemical and consumer goods company, (...)

The Cypriot Competition Authority fines a detergent seller €3.3M for abuse of dominance and obstruction of parallel imports of its products by competitors (Κ.A.C. Constantinides Trading / GPM-Henkel)
Commission for the Protection of Competition of the Republic of Cyprus (Nicosia)
Cyprus 64 contributions 9068 visits
The Commission for the Protection of Competition has imposed on Henkel AG & Co. KGaA, jointly and severally with GPM-Henkel Ltd, a total administrative fine amounting to €3.302.000 (three million, three hundred and two thousand euro) for infringement of Section 6(1)(b) of the Law and the (...)

The Danish Maritime and Commercial Court finds a medicine distributor guilty of abusing its dominant position (CD Pharma)
Bird & Bird (The Hague)
Netherlands 34 contributions 8915 visits
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Bird & Bird (Copenhagen)
Denmark 36 contributions 8310 visits
On 3 March 2020, the Danish Maritime and Commercial Court found a medicine distributor, CD Pharma AB, guilty of having abused its dominant position back in 2014. Due to its dominant position, the undertaking in question had a special responsibility not to harm competition – a responsibility (...)

The Israeli Competition Authority fines a company for abuse of its monopoly status, refusal to supply, and for the violation of merger conditions in the soft drink market (Coca Cola)
Israel Competition Authority (Jerusalem)
Israel 17 contributions 2188 visits
THE COMMISSIONER OF COMPETITION FINED COCA COLA ISRAEL APPROXIMATELY NIS 39 MILLION* The Commissioner of Competition decided today (Tuesday) to impose a monetary sanction of approximately NIS 39 Million on the Central Company for Sales and Distribution, for abusing its monopoly status, for (...)

The Indian Competition Authority orders an investigation into a multinational technology company with the aim of protecting micro-processors importers from the company’s discriminatory practices (Intel)
JSA (Mumbai)
India 2 contributions 1150 visits
On 9th August 2019, the Competition Commission of India directed the Director General to carry out investigations against Intel Corporation for allegedly violating Section 3 and 4 of the Indian Competition Act, 2002 (the ‘Act’). The case in hand was filed by Matrix Info Systems Pvt. Ltd. (...)

The Indian Competition Authority opens an investigation into abuse of dominance by a microprocessor manufacturer for having a more restrictive warranty policy in India than in the rest of the world (Intel)
Vaish Associates Advocates (New Delhi)
India 263 contributions 43073 visits
CCI directs investigation into India specific warranty policy of Intel finding it potentially abusive of dominance* By way of order dated 09.08.2019, CCI has directed the Director General (DG) to undertake investigation with respect to Intel’s India specific warranty policy in regard to its (...)

The Czech Supreme Court confirms that invoking trademark rights to prevent parallel imports can amount to an abuse of dominance (Fiskars / Mountfield)
Skils (Prague)
République tchèque 35 contributions 26217 visites
On 29 May 2019, the Supreme Court (SC) partially granted an extraordinary appealed lodged by Mountfield against the previous judgment of the High Court in Prague of 23 May 2017 (Ref.No. 3 Cmo 132/2016) in a dispute with Fiskars concerning an alleged violation of Firskars’ rights to trademarks (...)

The Danish Competition Appeals Tribunal upholds the decision fining a pharmaceutical distributor for excessive pricing (CD Pharma)
Van Bael & Bellis (Brussels)
Belgium 191 contributions 66990 visits
On 29 November 2018, the Danish Competition Appeals Tribunal upheld a 31 January 2018 decision of the Danish Competition Authority (“DCA”) finding that CD Pharma abused its dominant position on the Danish market by charging excessive prices for the sale of oxytocin, a hormone that acts as a (...)

The Hellenic Competition Authority fines a pharmaceutical company for reducing supplies of medicines to wholesalers (GlaxoSmithKline)
Van Bael & Bellis (Brussels)
Belgium 191 contributions 66990 visits
On 11 July 2018, the Hellenic Competition Commission (“HCC”) adopted a decision (the “Decision”) fining Glaxosmithkline (“GSK”) a total of €4.1 million for abusing its dominant position in relation to two pharmaceutical products: Imigran (an anti-migraine product) and Lamictal (an (...)

The Hellenic Competition Authority fines a pharmaceutical company for abuse of dominance in the market of migraine medicines (GlaxoSmithKline)
Hellenic Competition Commission (Athens)
Greece 132 contributions 18403 visits
Decision concerning GLAXOSMITHKLINE SA and GLAXOSMITHKLINE plc’s supply policy of medicinal products LAMICTAL, IMIGRAN and SEREVENT in the Greek market, following the partial referral of the case back to the Hellenic Competition Commission (HCC) by the Athens Administrative Court of Appeals (...)

The Danish Competition Authority fines a pharmaceutical company for abuse of dominance by charging unfair prices (CD Pharma)
Danish Competition and Consumer Authority (Copenhagen)
Denmark 133 contributions 36333 visits
CD Pharma has abused its dominant position by increasing their price by 2,000 percent* On 31 January 2018, the Danish Competition Council (“DCC”) ruled in a case concerning CD Pharma’s (a pharmaceutical distributor) abuse of dominant position by charging unfair prices for the drug (...)

The EU Court of Justice recalls the function of trademark and clarifies the criteria of exhaustion of trademark principle (Schweppes / Red Paralela)
Callol, Coca & Asociados (Madrid)
Spain 170 contributions 47188 visits
In its Judgment of 20 December 2017, the ECJ has ruled that Schweppes Spain may not oppose the import of bottles of tonic water under the trademark “Schweppes” imported from the UK. By way of background, Schweppes International or Schweppes Holding (Orangina Schweppes) is the proprietor of (...)

The Cypriot Competition Authority sends a Statement of Objections to a chemical and consumer goods company suspected to have abused its dominant position (K.A.C. Constantinides Trading / GPM-Henkel)
Commission for the Protection of Competition of the Republic of Cyprus (Nicosia)
Cyprus 64 contributions 9068 visits
The Commission for the Protection of Competition announces that it has notified Statements of Objections to Henkel AG & Co KGaA and its subsidiary GPM Henkel Ltd jointly and severally regarding a prima facie infringement of Section 6(1)(b) of the Protection of Competition Laws of 2008 and (...)

The EU Court of Justice AG Mengozzi takes a new look at the exhaustion of trademark rights and signals a willingness to accept the erosion of such rights in a case concerning a tonic water company (Schweppes / Red Paralela)
Van Bael & Bellis (Brussels)
Belgium 163 contributions 56375 visits
On 12 September 2017, Advocate General Mengozzi (“AG”) delivered an opinion in the Schweppes case in the context of a request for a preliminary ruling to the Court of Justice of the European Union (“ECJ”) from a Spanish Court. In particular, the AG proposed to develop the case-law on the (...)

The Spanish Competition Authority closes investigation against a tonic water company following submission of competition commitments in a case related to restrictions of parallel trade (Schweppes / Red Paralela)
Callol, Coca & Asociados (Madrid)
Spain 170 contributions 47188 visits
The NMCC has closed with commitments an investigation against Schweppes, S.A. related to restrictions of parallel trade. The Coca-Cola group and Orangina Schweppes Holding B.V. (OSHBV) share the ownership of the Schweppes trademark in the EU. Coca-Cola owns the Schweppes trademark in the UK (...)

The EU General Court addresses concepts of vexatious action and abuse of regulatory procedure in a judgment upholding rejection of a complaint (Agria Polska)
Van Bael & Bellis (Brussels)
Belgium 191 contributions 66990 visits
On 16 May 2017, the General Court offered guidance on the concepts of vexatious action and abuse of regulatory procedure in the context of a judgment upholding a Commission decision to reject a complaint brought by Agria Polska and four other companies active in the parallel importation of (...)

The French Competition Authority fines a supplier of rolled zinc for abuse of dominance (Umicore)
French Competition Authority (Paris)
France 747 contributions 409238 visits
The Autorité de la concurrence fines UMICORE, one of the global leaders in zinc, €69 million for abuse of dominant position towards its competitors by practicing during 9 years a trade policy aiming at constraining its distributors to supply themselves exclusively from the company* In brief (...)