Yesterday Advocate General Eleanor Sharpston gave her Opinion in Case C‑276/05 Wellcome Foundation Ltd v Paranova Pharmazeutika Handels GmbH, a reference for a preliminary ruling from the Oberster Gerichtshof, Austria. In this reference, which arises out of trade mark owner Wellcome's objections to the manner in which Paranova repackaged its ZOVIRAX tablets and failed to cooperate in providing data which Wellcome sought, the following questions were posed of the Court of Justice of the European Communities:

"1(a) Are Article 7 of the Trade Marks Directive and the case-law of the Court of Justice of the European Communities which has been pronounced on it to be interpreted as meaning that proof that reliance on the trade mark would contribute to an artificial partitioning of the market must be furnished not only as regards the repackaging in itself, but also as regards the presentation of the new packaging?

If the answer to this question is in the negative:

(b) Is the presentation of the new packaging to be measured against the principle of minimum intervention or (only) against whether it is such as to damage the reputation of the trade mark and its proprietor?

2 Are Article 7 of the Trade Marks Directive and the case-law of the Court of Justice of the European Communities which has been pronounced on it to be interpreted as meaning that the parallel importer fulfils his duty of notification only if he informs the proprietor of the trade mark also of the State of export and the precise reasons for the repackaging?".

"(1) Where a parallel importer of pharmaceutical products repackages the products in new packaging on the ground that repackaging is necessary in order to market the product in the Member State of importation, the lawfulness of the new packaging is to be measured solely against whether it is such as to damage the reputation of the trade mark and its proprietor.

(2) In such circumstances, the parallel importer, in order to fulfil his duty of notification under Article 7 of the Trade Marks Directive as interpreted by the Court of Justice, must give the proprietor of the trade mark information which objectively demonstrates that the repackaging was necessary. Such information may, but need not necessarily, include identification of the Member State of export".