The EFTA Court has given a rare trade mark ruling this morning in Cases E-9/07 and 10/07, L’Oréal Norge AS v (i) Per Aarskog AS and Others and (ii) Smart Club Norge AS. In each, the defendant was selling parallel-imported REDKEN products that had been first sold outside the European Economic Area, in the USA. In each case the defendants maintained that the doctrine of international exhaustion of rights prevented L’Oréal from asserting its national trade mark rights in respect of the imported goods, pointing out additionally that the EFTA Court had upheld the notion that EEA countries were free to opt for a regime of international exhaustion (which necessarily embraced exhaustion on both regional and national levels) in its earlier Maglite Advisory Opinion.

Reviewing both its earlier ruling as well as the European Court of Justice decision to contrary effect in Case C-355/96 Silhouette, the EFTA Court concluded that Article 7(1) of Council Directive 89/104 must be interpreted to the effect that it precludes the unilateral introduction or maintenance of international exhaustion of rights conferred by a trade mark regardless of the origin of the goods in question.

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