15Second, it is clear from the case-law of the Court that the trade mark proprietor’s opposition to commercialisation of repackaged pharmaceutical products under Article 13(2) of Regulation No 207/2009, which is a derogation from the free movement of goods, cannot, however, be accepted if the proprietor’s exercise of that right constitutes a disguised restriction on trade between Member States within the meaning of Article 36 TFEU (judgments of 11 July 1996, Bristol-Myers Squibb and Others, C‑427/93, C‑429/93 and C‑436/93, EU:C:1996:282, and of 26 April 2007, Boehringer Ingelheim and Others, C‑348/04, EU:C:2007:249). It follows that the proprietor of a mark may oppose a modification which involves any repackaging of a pharmaceutical product bearing its mark, which, by its very nature, creates real risks for the guarantee of origin of the pharmaceutical product, unless five conditions are met, namely:– it is established that the use of the trade mark rights by the proprietor thereof to oppose the marketing of the relabelled products under that trade mark would contribute to the artificial partitioning of the markets between Member States;– it is shown that the repackaging cannot affect the original condition of the product inside the packaging;– the new packaging states clearly who repackaged the product and the name of the manufacturer;– the presentation of the repackaged product is not such as to be liable to damage the reputation of the trade mark and of its owner; thus, the packaging must not be defective, of poor quality, or untidy; and– the importer gives notice to the trade mark proprietor before the repackaged product is put on sale, and, on demand, supplies him with a specimen of the repackaged product.
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