CASE COMMENTS: DISTRIBUTION - PARALLEL DISTRIBUTION - INFRINGEMENT OF TRADEMARK RIGHT - BURDEN OF PROOF OF THE EXHAUSTION OF THE RIGHTS - REAL RISK OF PARTITIONING OF NATIONAL MARKETS - REVERSAL OF THE BURDEN OF PROOF

Parallel imports: The Court of Cassation holds that the existence of a real risk of subdivision of markets supposes, on one hand, the implementation of a system of distribution allowing the holder of the brand to operate different commercial and tariff policies according to each territories and, on the other hand, the risk of a drying up of the parallel supply in case the defendant in the counterfeiting action would be forced to indicate his supplier identity, the demonstration of a parallel imports possibility excluding such a risk (Auchan)

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. Cass. com, May 28, 2009, Auchan v. X... International, No. 08-11520 Exclusive distribution systems set up by manufacturers are, like selective [1]distribution systems, confronted with parallel distribution phenomena. The defence of the coherence and economic viability of these networks cannot, however, benefit from the comfort offered by the stipulation of watertightness clauses to be borne by the distributors. At the very least, they do not benefit from the exemption from certain vertical restraints of competition offered by Regulation (EC) No 2790/1999. Pursuant to Article 4(b) of that Regulation, such clauses are covered only where they are stipulated

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Nicolas Éréséo, Parallel imports: The Court of Cassation holds that the existence of a real risk of subdivision of markets supposes, on one hand, the implementation of a system of distribution allowing the holder of the brand to operate different commercial and tariff policies according to each territories and, on the other hand, the risk of a drying up of the parallel supply in case the defendant in the counterfeiting action would be forced to indicate his supplier identity, the demonstration of a parallel imports possibility excluding such a risk (Auchan), 28 May 2009, Concurrences N° 1-2010, Art. N° 30215, pp. 117-119

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