According to EU case law, the sale of tester bottles of perfume may infringe trademark rights in certain circumstances. In particular, infringement issues may arise in connection with:
a trademark owner’s express prohibition of sale;
a trademark owner’s right to recall a tester;
the presentation of the product; and
the absence of required consumer information and non-compliance with product safety rules.
The advocate general of the European Court of Justice (ECJ), in his conclusions on a trademark infringement dispute (L’Oréal v eBay), recently stated that in the case of luxury cosmetics, a product’s outer packaging may be found to be part of the condition of the product if such packaging has a specific design that incorporates the trademark. In such cases, the trademark owner may be entitled to oppose further commercialization of unboxed products insofar as the removal of the packaging damages the trademark owner’s reputation and affects the allure and prestige that contribute to the product’s aura of luxury.