Docroy started this topic @ 18:56 on 09/04/2005
RE: 'Parallel Importing' or gray products help needed please!
Anglo-Sino | 09/04/2005 08:54 PM
Have the "other" competitors been contacted? We have negotiated a few "exclusivity" deals with manufacturers for particular products but am unsure about sole/official agent contracts and what the law is regarding matters related to this. I would certainly be talking to a solicitor either way to confirm if what they state is true. On the other hand take "Sony" for example. They have "official" suppliers yet you can import and sell Sony TV's, you cannot however claim to be an official supplier. Worst case scenario, short term, sell them as second hand....damage to the box! Keep us updated, interesting one.
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RE: 'Parallel Importing' or gray products help needed please!
Ian J | 10/04/2005 07:12 PM
Originally posted by: Docroy
Hi
we have just recieved a letter from our competitor saying that they as 'Official' dealers have the sole right to sell and distribute this companies products here in the UK.
It is not illegal to import and sell products in this country even if the Brazilian manufacturer has appointed one or more sole agents in this country (it does happen)
If the "official importer" has a problem it must surely be with Brazil and not with you as their contract is with the Brazilian manufacturer
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Factoring ,
Invoice Discounting ,
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Asset Finance specialist broker.
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RE: 'Parallel Importing' or gray products help needed please!
kamzul | 11/04/2005 08:56 AM
I am not an expert but i think it goes as following -
The Brazilian manufacturer has set up an exclusive agreement with your Uk competitor. They do this as your competitor can guarntee volumes/sales etc. You purchased from a Brazilian dealer who buys from the manufacturer. If the manufacturer finds out (a matter of time) he will tell the Brazilian dealer to stop supplying you. Otherwise the cosy overpriced deal they negotiated with your competitor would be in trouble.
Ian is right that it is up to your Uk competitor to go to the manufacturer and sort it out there.
The bottom line is that it depends on your Brazilian dealer - will he still supply you if the manufacturer finds out (probably not otherwise they may stop supplying him). Of course if he can keep his mouth shut and there is no product tracking codes then you may be ok. As it will take time for the manufacturer to track down the dealer. But once they put pressure, my guess is thay they will comply.
As for the Sony TV that is different. Products manufactured in Europe have free movement and i think it is much more difficult for manufactures to object dealers supplying goods beyond their own countries (free movement of trade and labour). Manufacturing or importing outside the EU is a totally different game. Levi managed to stop Tesco buying and selling grey import jeans from the US etc, but they could not stop Tesco buying Jeans from within Europe.
Bottom line is you need some expert legal advice.
Kamzul
RE: RE: 'Parallel Importing' or gray products help needed please!
icorelate | 26/04/2005 09:12 PM
We have done some significant research in this area - email me and I will forward all the research to you to read at your leisure.
The basic principle is as follow's
This is contrary to Article 7(1) of Directive 89/104 which spells out the
basic exhaustion principle for European trade marks. If, within the European
Economic Area, a trade mark proprietor sells goods which bear his trade mark
or allows those goods to enter the market with his consent, once he does so
he loses the right to control, through his trade mark rights, any further
sale or movement of those goods.
Basically - and I would check with the lawyers, if the manufacturer in Brazil is aware that his dealer is also selling to the UK then you do not have a problem. As long as there is evidence that the trade mark holder ' probably the Brazilian manufactuer ' has given consent you should be ok. This consent in this case should be explicit and not just inferred.
Also the trademark holder is not the UK company but the manufacturer. Hence it would be the manufacturer that would need to send you to court not the UK retailer !! Don't think they can do anything but to complain to the manufacture. A court order would be required to disclose your source of supply as well.
If the manufacture objected they may stop supply to the dealer to stop him exporting to the UK. They may not even care as it just increases their own sales.
Disclaimer : Do take your own legal advice and do not rely on the above.
RE: 'Parallel Importing' or gray products help needed please!
chris_stothers | 09/09/2008 01:05 PM
Hi,
No doubt you have resolved this issue by now - but others might find this of use.
kamzul and icorelate have basically got it right.
If the goods are protected by any intellectual property rights in the UK (such as patents, copyright, design rights or trade marks) then it will be unlawful unless the owner of those rights (not necessarily the person you bought them from) unequivocally consented to the goods in question being sold or resold in the European Economic Area. That is why it is generally easier to import from the EEA than from outside.
The question of consent is a difficult one - you have to show the brand owner (or owner of other IP) "unequivocally" consented to the resale. The UK courts have found such "unequivocal" consent in a couple of recent cases, but generally they will not make such a finding unless there is express consent.
Also, don't be so sure that the local distributor cannot bring an action themselves. Normally the brandowner will have to do it, but if the local distributor has been granted an exclusive licence for the territory then they may be able to sue in their own right.
As icorelate says - this is not legal advice, but just an outline of the position. this is a difficult area and so you should take proper legal advice on your individual circumstances.