The publisher of the iconic TOGO armchair challenged the sale of second-hand TOGO armchairs on a commercial website, alleging infringement on the grounds that certain second-hand armchairs had undergone substantial alterations that infringed the TOGO trade mark.
The Court recalled that the exclusive right of a trade mark owner to consent to the marketing of a product bearing his trade mark is exhausted by the first marketing of that product with his consent. Once the product has been placed on the market, the trade mark proprietor can no longer restrict or prohibit the movement of these marked products throughout the European Union.
The Court of First Instance notes that it is accepted that the protection conferred by trade mark law must not lead to a prohibition of the legitimate market in second-hand goods, taking account also of the need for maintenance and repair inherent in the passage of time.
However, where the product sold under the original trade mark has, subsequent to its authorised placing on the market, been so transformed that its nature has been changed, then the essential function of guaranteeing the origin of the product to consumers by mentioning the trade mark is undermined.
In this case, the Court noted that the substantial modifications made to the chair (upholstery, poorly made seams) did not respect the original configuration of the product and found infringement … for one chair only.
In fact, the plaintiff only proved the alteration of a single armchair, which had been seized and examined, out of the dozens of advertisements in question.
