Parallel import of Abercrombie & Fitch goods enjoined by court

The Asker and Bærum District Court has enjoined Only the Brave Industri AS, OTB TAG AS and Geogra Phic AS from importing and selling Abercrombie & Fitch goods in Norway (Case 09-137565TVI-AHER/1, September 29 2009).
A&F Trademark Inc, which manages the IP rights of Abercrombie & Fitch, the famous US fashion retailer, became aware that the defendants were selling Abercrombie & Fitch goods at several locations in Norway. After a thorough inspection of a particular batch, including five t-shirts, A&F concluded that the goods from this batch were counterfeit. To avoid substantial damage or inconvenience, A&F applied for an interim injunction before the Asker and Bærum District Court.
The court found in favour of A&F and enjoined the defendants from importing and selling the goods in question. At issue was whether:
  • the goods inspected by A&F were counterfeit; or
  • they were genuine and, therefore, the parallel import of the goods was legal.
The court found that the goods at issue were counterfeit. Moreover, the court stressed that even though the five t-shirts in question constituted only a small amount, it was more than likely that all the goods from this batch were counterfeit.
Independently of this finding, the court also considered whether other goods, which were recognized as genuine, had been legally parallel imported by the defendants. The defendants alleged that the goods had been imported by a Dutch company, International Clothing Trading CV and, therefore, A&F's trademarks rights were exhausted. However, A&F claimed that International Clothing did not have the authorization to import genuine Abercrombie & Fitch goods into the European Union or the European Economic Area (EEA). The court agreed and held that the goods in question had not been imported into the EU or the EEA with the consent of A&F. Consequently, any further import of the goods constituted an illegal parallel import.
The court thus issued an interlocutory injunction, and an oral hearing is due to be held in the near future. The decision is of interest in that it follows the approach taken by the European Free Trade Association Court in Redken (for further details please see "EFTA Court issues rare trademark decision") and clarifies the rules on parallel imports.
Felix Reimers and Siw Lyséll Dølvik, Advokatfirmaet Grette DA, Oslo

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