June 2006
Honda keep their motorcyles prices up
Honda Motor Company has been successful in preventing two motorcycle traders from importing their bike form the US.
The action taken has in the main put a stop to the practice of DK Motorcyles of Newcastle and Superbikes of Wigan from taking advantage of the lower sale price of Honda bikes in the US and selling them in Europe (namely parallel importing) .
Honda were able to do this by relying on a now established policy of the EU and EEA that a trade mark proprietor is entitled to stop parallel imports even though the trade mark is applied to genuine goods and the function of the trademark, which is the guarantee of origin and quality and not in question. Put bluntly, the law allow a trade mark proprietor to keep up prices in the EEA by use of its rights in the trademark. The only way of avoiding such a conclusion is for the importer to show that the motorcyles had previously been placed on the market in the EU or EEA with the consent of the trade mark owner.
Although in this case the court fund against DK Motorcyles and Superbikes the case re-iterates what could and could not amount to consent. It is not enough for example to claim that a purchase from an authorised dealer in another country is consent from the trade mark owner. More persuasive to the court were arguments run by the parallel importers that Honda must have known about the trade in that the Honda companies had connived in the parallel trade. A number of points were made here to try and show this all of which were however individually examined and dismissed by the judge. Although a good attempt to show consent was made the facts relied on were just not borne out by the evidence. By way of example it is no use claiming that Honda must have known about the export sales if the books of the authorised dealers actually hide these.
Briffa comments. The law remains that in order to avoid action by trade mark owners unhappy with parallel trade an importer must show it has consent. General statements of what a trade mark owner ‘must have’ known will not suffice and a parallel importer needs to keep detailed records of all this dealing which evidence this consent.
For further info Margaret Briffa