E-3/02

Paranova AS - V - Merck &Co Inc., Merck Sharp & Dohme B. V., MSD (NORGE) AS.

Høyesterett seeks answers to the following questions:

Do legitimate reasons exist within the meaning of Article 7(2) of Council Directive 89/104/EEA, of Articles 11 and 13 EEA, in a case where the conditions for permitting a parallel importer to undertake repackaging of pharmaceutical products and reaffixing of the trade mark have been met, but where the trade mark proprietor opposes the marketing of the repackaged product with the trade mark reaffixed in a packaging that the parallel importer has equipped with coloured stripes and/or other graphic elements that make up a part of the design of the packaging

In answering the question, it should be indicated whether the criterion of necessity that the Court of Justice of the European Communities has applied in interpreting legitimate reasons within the means of Article 7(2) OF Council Directive 89/104/EEA applies also to the more specific design of the packaging, or if the more specific design of the packaging is to be assessed solely on the basis of the condition that the repackaging must not adversely affect the reputation of the trade mark proprietor or the trade mark.