The ELZABURU firm has had the pleasure of collaborating with the Thomson-Reuters Aranzadi publishing house on the work Fashion Law, a pioneering treatise in Spain on fashion law, which was presented on April 16.
With these small weekly summaries, the ELZABURU professionals who have collaborated on the work offer us a brief overview of their contribution:
Exhaustion of rights in the fashion sector
The role that the brand plays in a sector such as fashion is undeniable; it not only provides a guarantee for the consumer, but, properly managed, it can report a important commercial value to its owner.
However, the premise of prohibiting use by third parties, from which trademark law is based, could contravene community values such as freedom of movement of goods or free competition if considered unambiguously.
With the intention of softening an extreme conception, the figure of the exhaustion of industrial and intellectual property rights, consisting of limiting this jus prohibindi regarding imports and sales of products, once they have been marketed in a certain jurisdiction.
The chapter uses the most relevant community jurisprudence on the matter to expose the historical-normative iter that this figure has traveled until it reached its current extension, from its conception to the delimitation of its exceptions.
Through its application, burnout gives rise to several phenomena that are key in the fashion sector, thus the chapter addresses the systems of selective distribution so common in products such as perfumery and luxury range products, studying the requirements that must be met to be configured as an exception to the principle of exhaustion, as well as its practical application by compiling the conclusions drawn from the Courts.
In the same way, it is common in this area to gray market or parallel trade, which seeks to take advantage of the fluctuation in prices of the same product in different States. The article points out key factors of this trade model, such as the actors involved, the indicators to be used to determine whether exhaustion has occurred or not, as well as its different approach depending on whether the intra-community or extra-community scope is used.
The emergence of the Internet has disruptively disrupted commercial distribution. Today, it is inconceivable that a product is not marketed online, and the consumer can choose to purchase it through a few simple clicks.
The implementation of the Information Society poses many legal challenges regarding the application of the doctrine of online exhaustion.
On the one hand, this new panorama has made it easier for parallel importers by reducing marketing costs and expanding the scope of their activity. On the other hand, the inherent ubiquity of the Internet presents a challenge to delimiting in which cases exhaustion has occurred.
As a final touch, the chapter addresses the control and protection measures regarding parallel trade of products, once it has been detected and analyzed, pointing out the most useful actions to carry out against it.
Author Fernando Díaz
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La Fashion Law series It is made up of the following deliveries:
1. The protection of brands in the fashion sector (23.04.2018)
2.The protection of designs in the fashion sector (30.04.2018)
3.Patent protection in the fashion sector (07.05.2018)
4.Protection of fashion through copyright (21.05.2018)
5.Image rights in the world of fashion (28.05.2018)
6.Data Fashion: privacy and data protection issues (04.06.2018)
7.Counterfeiting and piracy in fashion (11.06.2018)
8.Exhaustion of rights in the fashion sector (18.06.2018/XNUMX/XNUMX)
9.Corporate reputation in the fashion sector (25.06.2018)
10.Protection of the commercial image of a fashion brand (04.07.2018)
11.Fashion 4.0: websites, apps and social networks (13.07.2018)
12.Valuation of intangibles (17.07.2018)
13. Discharge (06.09.2018)
