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2019, vol. 57, iss. 7-9, pp. 134-159
Exemption from the application of the principle of trademark exhaustion
University of Belgrade, Faculty of Law
Keywords: exhaustion of rights; trademark exhaustion; exemption from the trademark exhaustion; trademark; European Union law; repackaging; luxury goods
Abstract
The Law on Trademarks of the Republic of Serbia explicitly stipulates that the rule on trademark exhaustion shall not be applied where there exists a legitimate reason for the trademark holder to oppose further commercialization of the goods, especially if a defect or another fundamental change of condition of the goods has occurred after they have been put on the market for the first time. The paper deals exactly with the presented issue of the exemption from the application of the principle of trademark exhaustion. The paper seeks to determine ratio legis of the observed exemption, in order to outline the guidelines for its interpretation. Bearing that in mind, the particular focus is on the practice of the Court of Justice of the European Union, relevant for the analysed issue. The analysis shows that the subject exemption should be interpreted restrictively and applied when it is necessary to prevent situations in which application of the principle of trademark exhaustion would unjustifiably undermine the achievement of the function of a mark to indicate origin of the goods, as the essential function protected by a trademark right. Nevertheless, the Court of Justice of the European Union interprets, to a certain extent, this exemption differently.

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article language: Serbian
document type: unclassified
published in SCIndeks: 12/07/2019

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