In a rare parallel import case, the Court of Appeal decided that a trade mark owner could prevent parallel imports of pharmaceutical products sold under its trade mark where the relevant goods were not put on the market by the trade mark owner, but by a third party. The decision focuses on the issue of 'control', which was material on the question of whether the trade mark owner could prevent the particular parallel imports.
The Court concluded that Flynn (the trade mark owner) did not have the ability to exercise control over the goods before they were placed on the market by the third party, Pfizer, in the exporting state. Further, the links between Flynn and Pfizer were not such that use of the Flynn trade mark was under Pfizer's control. Accordingly, Flynn's enforcement of its trade mark against parallel imports of products manufactured by Pfizer, and bearing Flynn's mark, would not breach free movement of goods provisions.
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