Discussion about parallel importing (from US) into the UK.

I'm particularly interested in this issue as to how it relates to the following question.

The specifics of the proposed activity would be as follows:

We buy branded goods (made by US based manufacturers) from sources within the US. The goods would then be exported to the UK for subsequent resale. Further, this would all be done in direct contravention of the mfr wishes.

In point of fact they are actively trying to stop this very thing from happening. For example, they impose export restrictions (as a condition of supply) on all US distributors/wholesalers. Basically they're seeking to place certain stock for resale exclusively within the US market and, prevent export to any other.

Naturally we can all guess at to why this might be. Yes you've guessed it I'm sure. Might it have something to do with the RRP (within the EU) being much much higher?

In short they want the sole authorized UK distributor to operate in what could be termed a "geographical monopoly".

So my original question once again:

What are the likely or indeed possible consequences for a UK Ltd company if they engaged in the following type of activity?

Naturally the mfr would first (in order to do anything) have to find out about the activity. However, as they inevitably would, what could then be done about it?

Obviously straightaway try preventing the supply i.e. find the US sources and "plug the leak". More importantly though what legal action if any *could* be taken against the UK importer? For instance can they go to law and "stop the UK importer from doing what they are doing" and then, perhaps sue for some kind of damages/compensation and make it their business to bankrupt the company in the process?

Best Regards

Graeme

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Reply to
Graeme
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The items will not be CE marked and are therefore illegal to import to the EEC.

Reply to
Peter Crosland

Ltd

import to the

I've just checked

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and the most likely candidate for CE seems to be

Conformit Europenne (European health & safety product label)

Is this correct?

Reply to
Graeme

Graeme wrote on Sat, 10 Jul 2004 22:24:35 +0100....

[snipped]

The Tesco supermarket chain tried to do this with Levi's jeans. After a long battle in both the English courts and the European Court of Justice, they (Tesco) lost.

The specific thing they were sued for was infringement of the Levi's trade mark. Under the EU Trade Marks Directive, once the goods have been placed on the market anywhere in the EU, with the trade mark owner's permission, they can then move freely around the EU without infringing the trade mark. Tesco argued that this also holds for goods imported from outside the EU, if they are "genuine" trade-marked goods. The ECJ disagreed, except where the trade mark owner has consented in some way to the importation into the EU.

Reply to
Tim Jackson

Probably..

They can limit imports from America to Europe but if you were to source your goods from another country in the EEA, you should be able to sell them freely in the UK.

Have a google/read about the case (3 year case ending in 2001) when Levi's took court action to stop Tesco's importing Jean's from outside the EU and reselling them in the UK - undercutting Levi's "official" retailers here.

It sounds somewhat similar to your situation.

Yes - well Levi's certainly got Tesco's to stop importing them from outside the EEA

I certainly hope they do change this law though - it seems like very bad news from EU residents - unfortunately, I woudn't expect it anytime soon.

Regards Sunil

Reply to
Sunil Sood

Yes.

Reply to
Peter Crosland

Indeed it is. Most products sold within the EU must have a CE mark. This mark purports to indicate conformity with one or more EU Directives. It is always affixed by the manufacturer (or importer if manufactured outside the EU) sometimes on his own recognisance and sometimes following testing at an independent lab. Always there must be a Technical file, indicating how the product conforms with the relevant Directive(s).

Reply to
Old Codger

Tim Jackson wrote on Sat, 10 Jul 2004 23:26:55 +0100....

Here are some references:

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Reply to
Tim Jackson

Sunil Sood wrote on Sat, 10 Jul 2004 23:33:17 +0100....

For what it's worth, I suspect that the Trade Marks Directive was drafted purely with intra-EU trade in mind. After all, that's what the Common Market is really all about.

So it stated very clearly that trade-marked goods could move freely around the EU, once the trade mark owner had consented to them being there. But it was silent about free movement of goods imported from outside the EU.

The European Court of Justice (following a line of earlier cases) has noted the contrast between these two situations. It has taken the silence about goods imported from outside the EU to mean that this situation must be different from where the trade mark owner has consented to sale in the EU. So it said that in that case the trade mark owner can refuse to give consent for the goods to be sold.

Reply to
Tim Jackson

mark. This

Directives. It is

I know the goods have passed all the safety tests in order to be resold in the EU (as they're being so already). This being the case could I as the importer not affix the mark quite legally?

Reply to
Graeme

from outside

Quite so but does anyone know about the "legal process" for such an action? For instance how long would it take?

My thinking as follows:

The business starts importing.

Goes for 6 months before the manufacturer finds out.

The legal cogs start turning.

6 months later the business goes bankrupt and the legal action ceases.

Then a new business new name and begin the process again for another year.

?
Reply to
Graeme

No. At least not without going through the full legal procedure.

Reply to
Peter Crosland

Well, IANAL but I would have thought it woudn't take long now - as all the courts now have a prior case to base their decision on..

With an immediate injunction against selling the product in question?

At least, thats what I would be asking for, if I was the manufacturer.

and if you keep doing it, won't the DTI ban you from owning/running a company?

Also, your customers may not appreciate you going out of business every 6 months to a year - warranty/guarantee issues if nothing else.

Regards Sunil

Reply to
Sunil Sood

Sell the items as secondhand

Reply to
INRI

Do you know to which Directives the goods have to conform? Do you have actual evidence that the goods do conform to the Essential Requirements of those directives (the Technical File and/or reports from EU authorised third party test houses)? If the answers to all the above is yes then, as the importer into the EU, you can (should) affix the CE mark. Do you know how to construct the CE mark? It is relatively simple but you must get it right.

If you do affix the CE mark remember to retain the Technical File and test house reports. Trading Standards (or the DTI in some circumstances) may require you to produce them for examination.

Reply to
Old Codger

The CA mark can be just a sticker. The crime is committed only if the goods turn out to not conform. Very few things ever get checked and if they do it is usually at the instigation of a competitor.

Reply to
John-Smith

them

such

How or and why would this help my cause?

Do brand owners not have trademark rights over second-hand good?

Would it not make any "difference" if the goods were not actually second-hand? So I way lying. Perhaps saying something like "these items are from my own personal collection". Even though this must be a blatant lie.

Reply to
Graeme

them from

such

question?

I wonder what the penalty for non compliance is? Hopefully not a criminal offence, anybody out there know the answer?

business every 6

Not if I write to the customers and explain why, give them the new URL perhaps.

warranty/guarantee issues if nothing else.

Not a problem, the manufacturer issue a lifetime warranty for the product i.e. send it back and they'll fix it for free.

Reply to
Graeme

I would add the official distributor would (certainly the second time around) be on the lookout for grey imports so you wouldn't get six months at it. AIUI legal cogs can sometimes turn very quickly especially if you get an injunction against you the first time you try it on. The need to start a new business under a new name would add to costs greatly, and would also mitigate against getting a good price since you could never establish a good reputation.

It wouldn't. The lower price you got would destroy the benefit of sourcing the goods cheaply in the US. To attempt to distance yourself from the retail transaction you'd have to sell them as private sales and be prepared to say you bought them privately. If your name kept on turning up this would not be supportable, and although I hate to mention it to recover import VAT you'd have to be vat registered, this would mitigate against selling the goods privately.

If the initial retail sale was a valid legal sale the rights of the trademark owner probably cease at that point unless some form of restrictive contract was entered into such as might apply in the case of some artwork, intellectual property or other. Don't books, CD's and DVD's have some prohibition about re-sale, lending etc.

If you wanted to make an income out of it inevitably your name would keep cropping up.

DG

Reply to
derek *

The retailer is responsible for the warranty.

Reply to
Peter Crosland

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