Parallel sales and the principle of trade mark exhaustion.
Can unauthorised distributors make parallel sales? When can the principle of trademark exhaustion be invoked? The Amazon, Sisley and L'Oréal cases.
Like
has already been explained (cf. La
selective distribution. A brief overview: risks and benefits), the
selective distribution has the function of protecting the marketing of
products which, depending on their characteristics, require a
resale more selected and cared for than consumer products.
In
such cases, the producer is inclined not so much to focus on the breadth and
capillarity of its sales network, as much as to favour a limitation of
commercial channelspreferring to entrust their products to a small
number of specialised dealers, chosen according to certain criteria
objective dictated by the nature of the products: professional competence (for
as far as would-be distributors are concerned),[1] quality
of the service offered, i.e. prestige and care of the premises in which the
retailers will have to carry out their activities.[2]
This system, regulated by the EU Regulation 330/2010 on Vertical Agreements,[3] complies with Art. 101 § 3 of the Treaty (and therefore does not fall under general prohibition laid down in § 1 of that Article), essentially if:
- "the choice of dealers is made according to objective criteria of a qualitative nature, concerning the professional qualification of the dealer, his staff and his facilities'.,
- which "these requirements are required indiscriminately for all potential resellers".,
- and that "are assessed in a non-discriminatory manner".[4]
With
reference to the type of products for which it may be
justified the use of a selective system, even though the Regulation
330/2010 makes no mention of this, as it merely gives a definition
of this system, it is considered that it is only reserved for products of
luxury, high quality and technologically developed.[5]
One
of the essential elements linked to selective distribution, it is certainly
related to the fact that, in such a system, the producer can impose the obligation of
not sell to parties (other than end users) not belonging to
to the network (formerly Article 4 (b) (iii)).[6]
According to
advantage is related to the limits that can be imposed on members of the system
selective, regarding the possibility of selling products online. On
point, European case law has stated that, while a
manufacturer of a non-selective system, it cannot prevent its distributors
to sell online,[7]
in a selective system, the producer is authorised to impose on its
distributor a clause allowing products to be sold through internet, a
provided that such sales activity online is
realised through an 'electronic shop window' of the authorised shop and that
thus preserving the aura of luxury and exclusivity of these
products.[8]
Moreover, case law[9] considered legitimate a contractual clause that prohibits authorised distributors of a selective distribution system to make recognisable use of third-party platforms for the Internet sale of contractual products, provided that this is aimed at safeguarding the image of those products and that it is established indiscriminately and applied in a non-discriminatory manner.
1. Parallel distribution by unauthorised distributors.
In any case, it is highly common in practice that, even if the manufacturer creates a selective system, parallel distributions develop within the market itself. This may be due to the fact that very often manufacturers only distribute 'selectively' in the most important markets, while reserving a 'classic' system (i.e. through an exclusive, non-selective importer) for the other areas, thus allowing (and facilitating) the 'classic' distributors to sell products also to parallel distributors within a selective market.[10]
Read also Parallel Sales in the EU. When and to what extent can a manufacturer control them? e Selective and exclusive distribution: the mixed system selective.
What
therefore happens if the manufacturing company takes over the unauthorised sale of
their products on a platform e-commerceby a
distributor/intermediary outside the selective distribution network?
È
clear, in fact, that in such a situation the relationship between producer and third party is
of a non-contractual nature and one must therefore understand what (and if any) instruments
legal provisions enabling the manufacturer to defend itself against such extraneous sales
to the selective system.
In order to answer this question, it is necessary to take a brief step back.
2. The principle of Community exhaustion.
As is well known, the European legal system guarantees the (fundamental) freedom of movement of goods; the child of this freedom is the principle of Community exhaustionintroduced with European Directive 2008/95/EC in Article 7 and transposed into Italian law by thearticle 5 c.p.i.[11]
According to
this principle, once the holder of one or more property rights
industry enters directly or with its own consent[12]
(e.g. by the licensee) to market a good in the territory of the Union
the European Union, the latter loses its exclusive rights.
The exclusive
is therefore limited to the first act of marketingwhile none
exclusivity may subsequently be claimed by the holder of the design,
on the circulation of the product bearing the mark.
The
principle of exhaustion, however, has an important exception: the second
paragraph of Article 5 c.p.i. contains, in fact, a safeguard rule that, with
reference to the trade mark, allows the proprietor, even when he has placed the
product on the market and, therefore, 'exhausted' the right, of prevent the
patent suffers a decrease in attractiveness and value.
At
in order to circumvent the fact that the trade mark proprietor may arbitrarily restrict the
free movement on the Community market, the derogation from the principle
of trade mark exhaustion is limited to the occurrence of conditions that
make it necessary to safeguard the rights that are the specific subject of the
property: the second paragraph of Art. 5 of the IPC provides that they must
exist
"reasons
legitimate for the holder himself to object to the further
marketing of products, particularly when the state of these is
modified or altered after being placed on the market".
La
community case law[13]
confirmed that the existence of a selective distribution network can be
included among the 'legitimate reasons' preventing exhaustion, provided that
the marketed product is a luxury or prestige item that
justifies the decision to adopt a selective distribution system.
It will be up to
at national judgetherefore, called upon to judge whether
there are 'legitimate reasons' for the trade mark proprietor to oppose it
further marketing of its products and, therefore, check whether the
selective distribution contracts comply with the law antitrust
European.[14] This
is (to simplify, but far from trivialising) to ascertain:
- the lawfulness of the
products, assessing their nature (i.e. whether they are luxury goods or,
high quality or technologically developed products); - that the third party respects the standard which
the manufacturer requires from its authorised distributors.
In
If not, then if the marketing methods used of the
third do not respect the standard required and are damaging to the trade mark
of the producer, this activity will be exempt from the principle of exhaustion.
In order to give some practical examples and thus try to make this issue as clear as possible for the reader, three recent (and very interesting) judgments of the Court of Milan are given below.
The case of Landoll s.r.l. v MECS s.r.l.
In the
2018 the Court was called upon to decide the following question: Landoll,
company leader in research, development and commercialisation
of professional cosmetics and owner of several brands, provided
selective distribution of their products, based on standard qualitative
selected, aimed at protecting the image of luxury and prestige. The applicant
detected the unauthorised offer for sale of its products on a
platform e-commerceattributable to the defendant. The applicant has therefore
sought an injunction against the respondent to continue its activity
of sale.
The
Court recognised that the infringement of the
appellant on its registered trade marks, it was inferred from the
"assessment of the existence of a
effective harm to their image of luxury and prestige that follows
from examination of the how products are presented to the public [...] is
on an e-commerce platform, which on its websitemanifested in the
their presentation to be plainly assimilated to any generic product of the
even lower quality sectors."[15]
Ha
therefore prevented the respondent from further advertising,
marketing, offer for sale of the plaintiff's products.
Case Sisley Italia s.r.l. v. Amazon Europe Core s.a.r.l.
In
this dispute,[16] Sisley
Italia s.r.l., a company also leader in the cosmetics sector and
organised through a selective distribution system, brought an action for
the Court of Milan prevented Amazon from marketing in the territory
Italian products bearing the Sisley trademarks, considering that the manner in which they are placed
commercially used by the defendant violated the standard required
by Sisley to its authorised distributors. The device states that on the
Amazon portal
"Sisley products
are displayed and offered mixed with other items, such as products for the
household and cleaning products, which are however low-profile and of little value
economic. Also in the 'Luxory Beauty' section [...] the Sisley brand is
approached to low-end brands of very high quality, reputation and price
inferior or far less prestigious."
La
judgment continues:
"Where you
consider that, in its contracts, Sisley explicitly requires that the
their products are sold in luxury perfumeries or in departments
specialising in perfumery and cosmetics in department stores, with staff
qualified, in a given urban context, undoubtedly appears
inadequate, compared to the required standards, the sale of products
in question next to microwave containers, cleaning products for the
floors and for pets,'
The Court of Milan therefore recognised that the marketing and promotion of such products on the same internet page as products of other brands - even of lower market segments - was "detrimental to the prestige and image of the Sisley brand. "
But what happens if products are imported from a non-EU country? The L'Oréal Case.
Like
condition because the exhaustion formerly article 5 c.p.i.
takes place is that the first marketing was carried out by the
holder (or with his consent) and that such entry is made
within the single market.
Different
the situation where the first entry into the single market is made by
Unauthorised third parties: the jurisprudence of the Court of Justice since 1982
decided that if the marketing of the protected good is carried out by the
holder outside the Community, the latter may assert his right
to oppose importation into the Union by a distributor
non-EU.[17]
Applying
these principles the Court of Milan[18]
prohibited IDS International Drugstore Italia s.p.a. from offering for sale
and marketing, in any manner or form, including the use of internet
and of social mediaof products L'Oréal. These products
had indeed been purchased by IDS from a non-EU distributor,
who had bought them directly from the manufacturer.
Place
that the first marketing within the EU had not been
carried out by the owner (or with his consent), he continued to
hold, pursuant to arts. 5 and 20 c.p.i., the right to oppose importation
parallel from non-EU countries without his consent.
Different
issue would be where the trade mark proprietor consents to the marketing
on the market in a given EEA Member State, in which case he exhausts
its intellectual property rights and, therefore, can no longer prohibit the importation
in a different Member State.
[1] Consider the
decision Grundig approved in 1985 by the Commission, in which
presence was required "of qualified personnel and an external service
with the technical expertise to assist and advise customers',
as well as 'the technical organisation necessary for the storage and
timely supply of buyers'; 'present and display products
Grundig in a representative manner in special rooms, separate from other
departments, and whose appearance reflects Grundig's market image'.
[2] On this point cf.
PAPPALARDO, The Competition Law of the European Union, p. 409, UTET,
2018.
[3] defining distribution
selective as: "a distribution system in which the supplier
undertakes to sell the goods or services covered by the contract, either directly or
indirectly, only to distributors selected on the basis of criteria
specified and in which these distributors undertake not to sell such
goods or services to unauthorised resellers in the territory that the supplier has
reserved for such a system."
[4] Metro Judgment I,
25.10.1977 and Case C-31/80, L'Oréal v PVBA. This orientation was confirmed
also from the Commission's Guidelines at No. 175, which state that "In
gender, it is considered that selective distribution based on purely
quality does not fall under Article 101(1) because
does not lead to anti-competitive effects, provided three
conditions. Firstly, the nature of the product in question must make
selective distribution system in the sense that such a system
must be a legitimate requirement in view of the
characteristics of the product in question, to preserve its quality and
ensure their proper use. Secondly, the choice of dealers
must take place according to objective criteria of a qualitative nature established
indiscriminately and made available to all potential resellers and
applied in a non-discriminatory manner. Thirdly, the criteria established do not
must go beyond what is necessary."
[5] In any case, an answer can be found in the Commission's Guidelines, where in No. 176, it is stated that: "if the characteristics of the product do not require selective distribution [...], such a distribution system does not generally lead to efficiencies that outweigh a significant reduction in intra-brand competition. If appreciable anti-competitive effects occur, the benefit of the Block Exemption is likely to be withdrawn". See also, n. 25, case Coty Germany, judgment of 6.12.2017, which provides:
[6] In this regard, one
recalls what the Court of Justice stated in the case Metro-Saba
IJudgment of 25.10.1977, at para. 27 ".Any sales system
based on the selection of distribution points inevitably implies -
otherwise it would make no sense - the obligation for wholesalers who are part of the
network, to supply only authorised dealers'.
[7] Case Pierre Fabre, judgment of 13.10.2011.
[8] Case Coty Germany, judgment of 6.12.2017.
[9] Cf.
previous note.
[10] In that case, the
manufacturer may not impose a ban on passive sales, in the
resellers in areas where the system does not exist
selective, but only prohibit it, pursuant to Art. 4(b)(i), from selling
active.
[11] Art. 5,
paragraph 1, c.p.i. (Exhaustion), "The exclusive faculties conferred by this
code to the holder of an industrial property right are exhausted one
once products protected by an industrial property right are
put on the market by the holder or with his consent in the territory
State or in the territory of a Member State of the European Community or of the
European Economic Area.'
[12] The practice
decision-making and European case law have made it clear that one has the consent
when the marketing was carried out by a controlled undertaking
by the intellectual property right holder or an enterprise, as a rule
a licensee, authorised to do so by the holder. Exhaustion occurs
when the protected product has been placed on the market by the holder of the
right "with his consent or by a person bound to him by ties of dependence
legal or economic' (sent. Keurkoop, cit., no. 25). On this point Cf. Pappalardo, The right
European Union competition, p. 875, 2018, UTET.
[13] Case Copad SA, judgment of 23 April 2009, "Where the marketing of luxury goods by the licensee in breach of a clause in the licensing contract is nevertheless to be regarded as having taken place with the consent of the proprietor of the trade mark, the latter may rely on that clause to oppose a resale of those goods on the basis of Article 7(2) of Directive 89/104, as amended by the Agreement on the European Economic Area, only if it is established, having regard to the circumstances of the case, that such resale damages the reputation of the trade mark. "
[14] On this point, cf. Fratti, Selective distribution of luxury cosmetics: the Court of Milan clarifies the prerequisites for the exclusion of the principle of trade mark exhaustion.
[15]
Court of Milan, Order of 18.12.2018. See previous footnote.
[16] Court of Milan, order of 3.7.2018
[17] Cf. Pappalardo,
op. cit., p. 878.
[18]
Court of Milan, Order of 19.11.2018, see footnote 12.
Parallel Sales in the EU. When and to what extent can a manufacturer control them?
When we speak of parallel sales, we are referring to imports alongside those made by an 'official', i.e. territorially competent, importer[1]Parallel traders enter the market reserved for exclusive distributors, without having direct access to the supplier, which only supplies authorised dealers.
Parallel trade, over the years, has taken very diverse forms and has often allowed the emergence of 'alternative' trade networks, which have flanked the official ones set up by the manufacturer; sometimes they are fed by the exclusive distributors themselves, who, having purchased the goods from the manufacturer, find it cheaper to resell them to parallel traders, with whom they have established trade relations; other times, parallel traders procure the goods from retailers in another country, where market prices are lower.[2]
1. Is an exclusive sales system that blocks parallel distribution lawful?
EU legislation has been confronted with this phenomenon from the very beginning and has had to try to find a balancing between, on the one hand, the free trade in goods and, on the other hand, the commercial interests of individual producers to divide up the different European markets through the appointment of exclusive dealers. The Commission's approach has always been to allow manufacturers to create networks by appointing exclusive dealers, so that they could more easily manage the different European markets. The 'compromise' that was reached was to create a clear dividing line between the forms of exclusive 'open' distributionwhich are considered permissible in principle, and so-called 'closed' exclusivities, which are almost always considered unauthorised[3].
The first forms are characterised by the fact that the dealer obtains the right to be the only party to be supplied by the manufacturer in a given territory. In any case, the position which is granted to the latter is not a 'monopoly', since parallel importers, in the manner and within the limits which will be described below, may purchase goods from third parties (wholesalers or dealers in other areas), and then possibly also resell them in the dealer's exclusive territory.
In contrast, theexclusive 'closed' is characterised by the fact that the dealer is granted perfect territorial protection by imposing on all distributors in the network a prohibition not to resell to persons outside their area, and a further obligation to impose this prohibition on their purchasers as well, and so on.
This approach was taken in the (now distant) decision Grundig[4]which the Commission has never deviated from, where it was deemed contrary to the principles of the European single market, the absolute protection of dealers and the creation of closed exclusive distributions, through, for example[5]:
- export ban imposed by suppliers on distributors;
- supplying traders known for their resale activities outside the established areas;
- price differentiation according to destination;
- reduction or outright abolition of discounts to wholesalers who had made unwanted exports[6];
- Reducing the quantities usually sold to wholesalers, with the aim of discouraging parallel exports.
The Court therefore held not only that distribution contracts with absolute territorial protection fall under the prohibition of theArticle 101(1) TFEUbut even that such agreements are prohibited solely on the basis of their restrictive object, without any market investigation being necessary to ascertain the effects such bans actually have on the market.
2. Regulation 330/2010: active and passive sales.
The Court's approach was also confirmed by the Regulation 330/2010on vertical sales. The Regulation, on the one hand, empowers market sharing through the granting of open exclusivity[7]On the other hand, Article 4(b) provides for the validity of contractual clauses imposing on importers the ban on active sales [8] (and not passive[9]) in the exclusive territory or to exclusive customers reserved for other distributors. Importantly, the exception is not limited to the prohibition of active sales in the exclusive territory, but also covers the ban on sales to exclusive customersthat is to say, that which the supplier reserves to itself, or has reserved for another purchaser.
The supplier, therefore, may not merely prohibit the distributor from making sales outside a zone or to a group of customers, since the prohibition, in order to be lawful, must relate to active sales in a zone or to customers exclusively reserved to a different distributor, or to the supplier itself.
The grantor may therefore prevent its exclusive dealers from taking initiatives aimed at conquering parts of the market in zones other than those assigned to them; in any event, the prohibition of out-of-zone sales may not be imposed for passive sales, i.e. the response to unsolicited orders from individual customers outside the exclusive zone.
3. Internet sales and the impact on parallel sales.
The phenomenon of parallel distribution certainly developed with the advent of Internet. The web being a platform that, by definition, can be visited "worldwide"has significantly increased the potential of individual links in the distribution chain to be visible (and thus sell) in territories exclusively reserved for other players (on this topic see Can a manufacturer prevent its distributors from selling online? Active sales, passive sales and geoblocking.).
Although there are substantial differences between sales online and sales offlineit can certainly be said that the principles set out in the preceding paragraph apply equally to both types of market. The powers and limits of the manufacturer to prohibit and direct the sales of its dealers are the same for traditional and electronic commerce: it will therefore be essential to understand, even in this context, the distinction between active and passive sales.
According to the Orientations of the Commission, the mere existence of an Internet site must in principle be regarded as a form of passive selling. Indeed, it reads:
"If a customer visits the Internet site of a distributor and contacts him, and if that contact results in a sale, including actual delivery, this is considered a passive sale. The same applies if a customer decides to be informed (automatically) by the distributor and this results in a sale. " [10]
Otherwise, it must be considered an active sale:
"Online advertising specifically targeted at certain customers [...]. Banners showing a territorial link on third party websites [...] and, in general, efforts to be found specifically in a particular territory or by a particular customer group constitutes active selling in that territory or to that customer group [including] the payment of a fee to a search engine or online advertising provider to present advertisements specifically to users located in a particular territory. "
The appreciable expansion of sales via the Internet has had the effect of opening up considerable space for intra-brand competition and parallel distribution, and this has certainly also been favoured by European case law, which tends to favour the use of this tool also by the supplier's dealers and intermediaries.
Indeed, following the rulings Pierre Fabre of 13.10.2011[11]an absolute prohibition on distributors from using the internet for the distribution of purchased goods is to be considered fundamentally impermissible. A limit to this dispositive power was imposed by the judgment of 6 December 2017 Coty Germany GmbH[12]where the Court clarified that in a system of selective distribution of luxury products, a manufacturer (in this case Coty) is authorised to impose a clause on its distributor allowing it to sell the products via internet, but on condition that this activity is carried out in such a way as to preserve the luxurious connotation of the products.
The most recent decision Guess of December 2018[13]in which the Commission fined the parent company EUR 40 million for imposing a ban on retailers selling contractual products via internet or any other electronic or computer system, without the prior written consent of Guess same.
Also linked to the Internet is the question - which would require much more in-depth study on its own - of whether a manufacturer can directly sell on a platform online products at lower prices than those recommended to their dealers. Indeed, the question arises whether such conduct can be considered contrary to the performance of the contract in good faith formerly Article 1375 of the Civil Code. Italian jurisprudence does not yet appear to have ruled on this matter; for the time being, we limit ourselves to recommending that this case be clearly and precisely provided for in the concession contract, since otherwise such conduct could give rise to very complex and burdensome disputes for both parties.[14]
4. Can parallel distribution be avoided by creating a selective distribution system?
One way to avoid the creation of parallel distribution could be the creation of a selective distribution network, since, in this type of distribution, the manufacturer can demand that its goods can only be purchased from certain intermediaries, who comply with the form and quality requirements imposed by the manufacturer (cf. Selective distribution. A brief overview: risks and benefits). It follows that, in a selective distribution system without loopholes, products do not come into the possession of intermediaries or commercial resellers who are not admitted to the network. (cf. The mixed system: when the manufacturer chooses to adopt both exclusive and selective distribution).
However, even this system has advantages, disadvantages and limitations; firstly, it can only be implemented for products high quality and technologically developed.[15]
In addition, Article 4 d) of the Regulation, however, provides for restrictions on the manufacturer's power of direction, which may not prevent the "cross-supplies between distributors within a selective distribution system, including distributors operating at different trading levels." This freedom for each member of the selective network to obtain supplies from other members without hindrance is the necessary counterpart to the exclusion of parallel distribution networks. The Orientations provide in paragraph 58 that:
"an agreement or concerted practice may not have as its direct or indirect object to prevent or restrict active or passive sales of the contract products between the selected distributors, who must remain free to purchase those products from other designated distributors in the network, operating at the same or a different level of trade. Selective distribution may therefore not be combined with vertical restraints aimed at forcing distributors to purchase the contract products exclusively from a particular source."
Last but not least, it is noted that, albeit in a selective distribution, "the producer may impose a no-see obligation on parties (other than end users) outside the network" formerly Article 4(b)(iii), very often in practice many manufacturers distribute 'selectively' only in the most important markets, while reserving a 'classical' system (i.e. through an exclusive importer) for the other zones. In such a case, the manufacturer may not impose a ban on passive sales, vis-à-vis resellers belonging to areas where the selective system does not exist, but only prohibit active sales under Article 4(b)(i).
However, this is without prejudice to the right of the producer, who has legitimately adopted a selective distribution system in order to protect the branded productsto take action against parallel distributors, whose resale methods are such as to damage the image of luxury and prestige - which the manufacturer seeks to defend precisely through the adoption of a selective distribution system - or in any case that there is a confusing effect as to the existence of a commercial link between the trademark owner and the unauthorised reseller. In this regard, we highlight two recent orders of the Court of Milan (cf. Online sales by unauthorised distributors. The Amazon, L'Oréal and Sisley cases). [16]
__________________________________
[1] See definition from Simone Online Dictionaries https://www.simone.it/newdiz/newdiz.php?action=view&id=736&dizionario=11
[2] On this point see Pappalardo, The Competition Law of the European Union, p. 403, 2018, UTET.
[3] On this point see Bortolotti, I contratti di distribuzione, p. 690, 2016, Wolters Kluwer.
[4] Decision Grundig-Costen, 23.9.1964.
[5] On this point see Pappalardo, The Competition Law of the European Union, p. 383, 2018, UTET.
[6] The Commission expressed its opinion in the case Distillers (1978), where the Commission emphasised the fact that rebates can be used to regulate export flows indirectly ".by providing that DCL's UK resellers who export spirits to other EEC countries are charged a different price to that charged when the spirits are resold for consumption on the domestic market, and by also reserving the price discounts only to sales of spirits for resale and consumption in the UK, restrict the freedom of those customers to resell the products in question in another EEC country (...).
The inapplicability of discounts to sales of spirits for export and the application of different prices to the same customers for spirits intended for export and those intended for consumption in the United Kingdom, constitute a clear attempt to prevent parallel imports from the UK into other EEC countries and therefore amount to an express export ban (n. 2, p. 25).
[7] Importantly, however, Regulation 330/2010, contrary to its predecessor 2790/1990, does not mention the "open" exclusivity clause, but it is "automatically" exempted on the basis of the principle of the lawfulness of all clauses not expressly prohibited, laid down in Article 2 of the Regulation.
[8] Le Commission Guidelines (LGC or Orientations) in paragraph 51, active sales are defined as: 'active contact with individual customers for instance by mail, including by sending unsolicited e-mails, or by visits to customers; or active contact with a specific group of customers, or customers located in a specific territory through advertisements in the media or via the Internet or other promotions specifically aimed at that group of customers or customers in that territory. Advertising or promotions that are only attractive to the buyer if they (also) reach a specific group of customers or customers in a specific territory are considered active sales to that group of customers or customers in that territory."
[9] Le LGCPoint 51 defines passive sales as: 'the response to unsolicited orders from individual customers, including the delivery of goods or the provision of services to such customers. Passive sales are advertising actions or promotions of a general nature that reach customers within the (exclusive) territories or customer groups of other distributors, but which are a reasonable way to reach customers outside those territories or customer groups, for instance to reach customers within one's own territory. General advertising or promotions are considered a reasonable way to reach such customers if it is attractive for the buyer to make such investments even if they do not reach customers within the (exclusive) territory or the (exclusive) customer group of other distributors
[10] LGC No. 52
[11] C-439/09, Pierre Fabre of 13.10.2011.
[12] C-230/16, Coty Germany of 6.12.2017.
[13] https://www.bbmpartners.com/news/La-decisione-Guess-della-Commissione-Europea-Una-prima-analisi
[14] Please refer to Dr. Thume's "Paralleler Online-Vertrieb des Herstellers im Spannungsfeld seiner Dispositionsfreiheit und Treuepflicht', Betriebs-Berater, 15.2018, p. 770.
[15] This means that the application of such a system to product types that are not "adequate'", entails the risk of a (albeit hypothetical) withdrawal of the exemption by the Commission, i.e. by the Supervisory Authority, for agreements with effects exclusively on the internal market. On this topic see Pappalardo, Il diritto della concorrenza dell'Unione Europea, 2018, p. 405, UTET.
[16] Orders of 19 November 2018 and 18 December 2018 of the Court of Milan. https://sistemaproprietaintellettuale.it/notizie/angolo-del-professionista/13754-distribuzione-selettiva-di-cosmetici-di-lusso-il-tribunale-di-milano-chiarisce-i-presupposti-per-l-esclusione-del-principio-dell-esaurimento-del-marchio.html