“Not for sale”: us and eu approaches to trademark and copyright

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On January 4 2010 the US Court of Appeals for the Ninth Circuit established that the distribution, by the copyright owner, of promotional CDs for marketing purposes involved a transfer of ownership of such CDs to the recipients, regardless of the fact that such copies were labelled ‘promotional use only – not for sale’, thus allowing third parties to sell on such copies without the copyright owner’s consent.

In contrast, EU case law seems to demonstrate a stricter approach to the issue. In a case involving perfume testers, the Court of Justice of the European Union (CJEU) established that the fact that such tester bottles are labelled ‘not for sale’ precludes a finding that the trademark owner implicitly consented to them being put on the market (in the absence of evidence to the contrary, which it is for the national courts to assess). The CJEU considered that in such circumstances the label on the bottles clearly reflects the intention of the relevant trademark owner, and that goods bearing the label should not be sold.

Article filed under: Brand, Rights, Intellectual Property
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